Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property. (ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents. (iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents. (iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents. (v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced. (vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations. (vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded. (viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Credit Agreement (Twin Disc Inc), Credit Agreement (Twin Disc Inc)
Mandatory Prepayments. (i) If 2.9.1 In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Subsidiary shall at in respect of any time Prepayment Event, the Borrower shall, not later than the date that is fifteen days after such Net Proceeds are received by or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount on behalf of the estimated Net Cash Proceeds Borrower or, subject to be received by Borrower or such Subsidiary the limitations set forth in respect thereof) andthe proviso to this sentence, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Lossany Subsidiary, Borrower shall prepay the Obligations LIBOR Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate principal amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment ; provided that the Borrower shall be applied required to make a prepayment pursuant to this Section 2.9.1 in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies respect of Bank for any breach of Section 7.5 Prepayment Event described in clause (Maintenance of Subsidiariesa) or Section 8.1(i(c) of the definition of the term “Prepayment Event” resulting from an Asset Sale solely involving property of a Subsidiary or from the incurrence of Indebtedness of a Subsidiary, respectively, only to the extent that (Change i) the applicable Subsidiary is permitted under the terms of Control) hereof the Opco Credit Agreement, any Existing Term Loan Refinancing Documents or any other terms Indebtedness of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneyto distribute the Net Proceeds from such Asset Sale or incurrence of Indebtedness, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1directly or indirectly, to the Borrower shall promptly notify Bank of after giving effect to the estimated Net Cash Proceeds of such issuance to be received by prepayment, mandatory offer or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts reinvestment requirements and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amountterms, if any, necessary set forth in the applicable Indebtedness documentation and (ii) the applicable Subsidiary is permitted to reduce distribute the sum Net Proceeds, directly or indirectly, to the Borrower without violating any applicable Law or provisions of the aggregate principal amount Organizational Documents of Revolving Loans and L/C Obligations then outstanding such Subsidiary that are in effect on the Effective Date or come into effect after the Effective Date so long as any such limit on distributions to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum Borrower were not put in place in contemplation of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be requirements in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans 2.9.1 (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid andor, in the case of any Term LoansPerson that becomes a Subsidiary after the Effective Date, accrued interest thereon that are in effect on the date such Person becomes a Subsidiary so long as any such limit on distributions to the Borrower was not put in place in contemplation of the requirements in this Section 2.9.1); provided further that, once the restrictions set forth in the immediately preceding proviso with respect to such Subsidiary no longer apply, such Subsidiary shall promptly distribute the Net Proceeds from the applicable Prepayment Event (or the portion thereof that was not permitted to be distributed to the Borrower as a result of such restrictions, requirements or terms) to the Borrower and the Borrower shall promptly, and in no event less than 5 Business Days after the receipt thereof, make a prepayment pursuant to this Section 2.9.1 with such Net Proceeds (or portion thereof).
2.9.2 Prior to any mandatory prepayment of LIBOR Loans under Section 2.9.1, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment delivered pursuant to Section 2.9.3.
2.9.3 The Borrower shall notify the Lenders by telephone (confirmed by hand delivery or facsimile) of any mandatory prepayment hereunder not later than 11:00 a.m., three Business Days before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment together with any amounts due Bank under Section 3.3date, the principal amount of each Borrowing or portion thereof to be prepaid and a reasonably detailed calculation of the amount of such prepayment. Prepayments shall be accompanied by accrued interest on the portion of the LIBOR Loans so prepaid.
Appears in 2 contracts
Sources: Credit Agreement (TerraForm Power, Inc.), Credit Agreement
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event Not later than the fifth Business Day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andof any Asset Sale or any Recovery Event (to the extent that such Net Cash Proceeds exceed $1,000,000 in the aggregate), promptly upon receipt by Borrower or such Subsidiary the Borrowers shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(e); provided that: so long as no Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds are expected to be used, or committed to be used, to acquire assets useful (in the good faith judgment of the U.S. Borrower) in the Borrowers’ (or their Restricted Subsidiaries’) business within 12 months following the date of such Disposition Asset Sale or Recovery Event; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if the Borrowers or any of their Restricted Subsidiaries have entered into a binding contractual commitment for reinvestment within such 12-month period, not so reinvested within 18 months following the date of such Asset Sale or Recovery Event), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.13(a); provided further that if at the time that any such prepayment would be required, the Borrowers or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Sale or Recovery Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the applicable Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of Lossthe aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time so long as 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, Borrower and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase, redemption or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.13(a) shall be reduced accordingly.
(b) No later than the fifth Business Day after the date on which financial statements with respect to a fiscal year of Holdings are delivered pursuant to Section 5.04(a), beginning with the fiscal year ending on or about December 31, 2016, the Borrowers shall prepay the Obligations outstanding Loans in accordance with Section 2.13(e) in an aggregate principal amount equal to the excess (if any) of (x) 50% of Excess Cash Flow for the fiscal year then ended (provided that such percentage shall be reduced to 25% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.00 to 1.00 but greater than 1.50 to 1.00, and to 0% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 1.50 to 1.00) minus (y) Voluntary Prepayments made during such fiscal year, on a dollar-for-dollar basis, other than to the extent any such Voluntary Prepayment is funded with the proceeds of new long-term Indebtedness.
(c) In the event that any Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed of any Borrower or any Restricted Subsidiary (other than any cash proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrowers shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by the Borrowers or such Restricted Subsidiary, apply an amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.13(e).
(d) Upon the extent such Net Cash Proceeds are actually reinvested earliest to occur of (i) the termination of the Acquisition Agreement in such similar assets accordance with such 90 day period. Promptly after its terms, (ii) Capitol ceasing all operations except for the end purposes of winding up, redeeming 100% of the shares sold in Capitol’s initial public offering for cash and dissolving and liquidating and (iii) August 1, 2015, the Borrowers shall, not later than the second Business Day following the date of such 90 day periodoccurrence, apply an amount equal to $30,000,000 to prepay outstanding Loans in accordance with Section 2.13(e) (the “Outside Date Repayment”).
(e) So long as any Loans are outstanding, mandatory prepayments of outstanding Loans under this Agreement shall be applied pro rata to each Class of Loans (except, in the case of amounts required to mandatorily prepay the Loans pursuant to Sections 2.13(b), such mandatory prepayments shall be allocated to each of the U.S. Term Loans and the Cayman Term Loans based on the amount of Excess Cash Flow generated by each of the U.S. Borrower and the Domestic Subsidiaries, on the one hand, and the Cayman Borrower and the Foreign Subsidiaries, on the other hand, as determined in good faith by the U.S. Borrower) and within each Class to any installments thereof (1) in direct order of maturity of the remaining installments for the next eight amortization payments following the relevant prepayment event, and (2) thereafter, ratably to the remaining installments.
(f) Each Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, deliver to the extent such Net Cash Proceeds have not been so reinvestedAdministrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of each Borrower shall promptly prepay setting forth in reasonable detail the Obligations in calculation of the amount of such Net Cash Proceeds not so reinvestedprepayment and (ii) to the extent practicable, at least three Business Days prior written notice of such prepayment. The Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent shall promptly advise the Lenders of any notice given (and the contents thereof) pursuant to this Section 2.13. Each such Lender may reject all of its pro rata share of the prepayment (excluding the Outside Date Prepayment) (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrowers no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such Lender’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Lender shall specify the principal amount of the prepayment to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Any Declined Proceeds may be retained by the Borrowers. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(g) In connection with any mandatory prepayments by the Borrowers of the Loans pursuant to this Section 2.13, such prepayments shall be applied on a pro rata basis to the then outstanding Loans being prepaid irrespective of whether such outstanding Loans are Alternate Base Rate Loans or Eurodollar Rate Loans; provided that if no Lenders exercise the right to 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 the outstanding Term Loans until paid in full and then that are Alternate Base Rate Loans to the Revolving Loans; provided full extent thereof before application to Loans that proceeds relating to Eligible Inventory and Eligible Receivables then included are Eurodollar Rate Loans in a manner that minimizes the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds amount of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account any payments required to be disbursed made by the Borrowers pursuant to Section 2.16. Notwithstanding any other provisions of this Section 2.13, if the Borrowers determine in good faith that the repatriation by any Foreign Subsidiary, of any amounts required to mandatorily prepay the Loans pursuant to Sections 2.13(a) or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(iib) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities above would result in material and adverse tax consequences (whether common or preferred stock or otherwiseincluding from withholding tax), other than equity securities issued taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as reasonably determined by the exercise of employee stock optionsBorrowers, the amount that the U.S. Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance be required to be received by mandatorily prepay pursuant to Sections 2.13(a) or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance(b) above, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment as applicable, shall be applied in reduced by the Restricted Amount until such amounts time as such Foreign Subsidiaries may repatriate to the U.S. Borrower the Restricted Amount without incurring such material and adverse tax liability (the Borrowers hereby agreeing to use commercially reasonable efforts to, and to cause each of its Foreign Subsidiaries to, promptly take all available actions reasonably required to mitigate such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitmenttax liability); provided that to the proceeds extent that the repatriation of any Net Cash Proceeds or Excess Cash Flow from the divestiture of relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Net Cash Proceeds or Excess Cash Flow, ▇▇▇▇▇▇as applicable, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ not previously applied pursuant to the immediately preceding clause shall be permitted to first be promptly applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment repayment of the principal amount Loans pursuant to be prepaid and, in the case of any Term Loans, accrued interest thereon Sections 2.13(a) or (b) as otherwise required above (without regard to the date of prepayment together with any amounts due Bank under Section 3.3this paragraph).
Appears in 2 contracts
Sources: Credit Agreement (Lindblad Expeditions Holdings, Inc.), Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to after the Closing Date any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Group Member receives any Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andfrom the Incurrence of any Indebtedness (other than Excluded Indebtedness), promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Term Loans on a pro rata basis on the date of such receipt in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided provided, that (x) so long as no Default or Event if at the time of Default then exists, this subsection shall not require any such prepayment with respect such Group Member is required to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied prepay any Other Applicable Indebtedness (to replace or restore the relevant Property in accordance with extent and if required by the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days terms of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to definitive documentation governing such Dispositionother Indebtedness), then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect may apply 100% of such Net Cash Proceeds to prepay the extent Term Loans and prepay, redeem or repurchase such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after Other Applicable Indebtedness on a pro rata basis on the end date of such 90 day periodreceipt; provided, Borrower further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall notify Bank whether Borrower be at par (or less than par), (B) the portion of such Subsidiary has reinvested prepayment amount allocated to such Net Cash Proceeds in Other Applicable Indebtedness shall not exceed the amount required to be allocated to such similar assetsOther Applicable Indebtedness pursuant to the terms thereof, and, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(a) shall be reduced accordingly and (D) to the extent the holders of such Net Cash Proceeds Other Applicable Indebtedness decline to have not been so reinvestedsuch Indebtedness prepaid, Borrower redeemed or repurchased, the declined amount shall promptly prepay (and in any event within 10 Business Days after the Obligations in the amount date of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first rejection) be applied to prepay the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it Term Loans in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection accordance with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentshereof.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Credit Agreement (Advanced Drainage Systems, Inc.), Credit Agreement (Advanced Drainage Systems, Inc.)
Mandatory Prepayments. (ia) If Borrower [Reserved].
(b) Subject to paragraph (f) below, following the consummation of any Asset Sale by the Company or any Subsidiary shall at of its Subsidiaries, in the case of cash proceeds, and following receipt of cash proceeds representing payments under notes or other securities received in connection with any time or from time to time make or agree to make a Disposition or shall suffer non-cash consideration obtained in connection with such Asset Sale, an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Proceeds of such Asset Sale shall be applied by the Company on the date of receipt thereof to the prepayment of the Loans. Notwithstanding the foregoing, if no Default or Event of Default shall have occurred and shall be continuing at the time of such Asset Sale or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Proceeds except to the extent that within 360 days of receipt of such proceeds, they have neither been reinvested in productive assets of a kind then used or usable in the business of the Company and its Subsidiaries nor contractually committed (and any such proceeds not applied to such contractual commitments at the time required shall be deemed to be Net Proceeds to be applied as set forth in this Section) to be used for such purposes, at which time all such proceeds shall be deemed to be Net Cash Proceeds; provided provided, that proceeds received from Asset Sales of any Qualified Domestic Assets shall be deemed to have been “reinvested” for purposes of this Section 5.6(b) only to the extent that such proceeds are reinvested (xi) pursuant to, and subject to the limitations set forth in, Section 9.7(b)(ii) hereof, or (ii) in assets which will constitute Qualified Domestic Assets, subject only to the perfection of the Liens of the Collateral Agent as required in clause (ii) of the definition thereof.
(c) Each prepayment of Loans pursuant to clause (b) above shall be applied: first, to the next four quarterly principal repayment installments and then to the remaining principal repayment installments, in each case ratably to each Incremental Term Loan Tranche (if any) and to the principal repayment installments thereof, and second, to the Revolving Credit Facility in the manner set forth in paragraph (d) below.
(d) Payments in respect of the Revolving Credit Facility pursuant to this Section 5.6, first, shall be applied ratably (i) to reimburse the Issuing Lenders for all unreimbursed L/C Disbursements for which the Issuing Lenders have not received payment from the Revolving Credit Lenders pursuant to the third sentence of Section 2.6(b), (ii) to reimburse those Revolving Credit Lenders which, pursuant to the fourth sentence of Section 2.6(b), have previously made payments to an Issuing Lender pursuant to the third sentence of Section 2.6(b) and (iii) to repay Swing Line Loans which are not Refunded Swing Line Loans, second, shall be applied ratably to repay outstanding Revolving Credit Loans, and third, shall be used to Cash Collateralize all undrawn Letters of Credit then outstanding. Any amount remaining following the application required by the preceding sentence in full may be retained by the Company for use in the ordinary course of business, and the Revolving Credit Facility shall be automatically and permanently reduced dollar for dollar by the amount so retained.
(e) [Reserved].
(f) Upon receipt by the Company or any of its Subsidiaries of the amounts required to be paid pursuant to paragraph (b) above from any Asset Sale consisting of the sale of shares of capital stock of any Subsidiary of the Company (or, upon receipt by the Company or its Subsidiaries of such amounts as are permitted to be retained in accordance with paragraph (b) of this Section 5.6), (i) the Administrative Agent shall release to the Company, without representation, warranty or recourse, express or implied, those of such shares of capital stock of such Subsidiary held by it as Pledged Stock (as defined in the Pledge Agreement) and (ii) the Agents and the Lenders will, upon the request of the Company, execute and deliver any instrument or other document in a form acceptable to the Administrative Agent which may reasonably be required to evidence such release.
(g) In the event and on such occasion that the Aggregate Revolving Credit Extensions of Credit and Swing Line Loans exceed the aggregate Revolving Credit Commitments, the Company shall prepay Revolving Credit Loans or Swing Line Loans (or, if no such Loans are outstanding, deposit cash collateral in an account with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to such excess.
(h) The Company shall give the Administrative Agent (which shall promptly notify each Lender) notice as specified in Section 5.5 of each prepayment pursuant to Section 5.5 setting forth the date and amount thereof. Prepayments of Eurodollar Loans pursuant to this Section 5.6, if not on the last day of the Interest Period with respect thereto, shall, at the Company’s option, as long as no Default or Event of Default then existshas occurred and is continuing, this subsection shall not require any be prepaid subject to the provisions of Section 5.21 or such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid andABR Loans, in the case of any Term Loans, accrued interest thereon prepayments by the Company) shall be deposited with the Collateral Agent as cash collateral for such Eurodollar Loans on terms reasonably satisfactory to the Collateral Agent and thereafter shall be applied to the prepayment of the Eurodollar Loans on the last day of the respective Interest Periods for such Eurodollar Loans next ending most closely to the date of prepayment together receipt of such Net Proceeds as contemplated by paragraph (b) above. After such application, any remaining interest earned on such cash collateral shall be paid to the Company.
(i) Upon the Revolving Credit Termination Date the Company shall, with any amounts due Bank under Section 3.3respect to each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to be cancelled without such Letter of Credit being drawn upon or (ii) Cash Collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a letter of credit issued by banks or a bank satisfactory to the Administrative Agent on terms satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Be Aerospace Inc), Credit Agreement (Be Aerospace Inc)
Mandatory Prepayments. Upon the occurrence of any Casualty Event or Asset Sale (i) If that is not otherwise permitted pursuant to Section 9.09), the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount mandatory prepayment of the estimated Net Cash Proceeds Loans, pro rata between Initial Loans and Delayed Draw Loans, in an amount equal to be received by Borrower or such Subsidiary in respect thereofone hundred percent (100%) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds received by the Borrower or any of its Subsidiaries with respect to such Disposition Casualty Event or Event Asset Sale, as the case may be, with such amount of LossNet Cash Proceeds being allocated to the prepayment of principal, Borrower shall prepay the Obligations in an aggregate payment of accrued and unpaid interest on such principal amount equal to 100% of the amount of all Loans being prepaid and the Prepayment Premium, if any, such that the full Prepayment Price applicable to such mandatory prepayment is paid with such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) abovethat, so long as no Default or Event of Default then existshas occurred and is continuing or would result therefrom, if if, within five (5) Business Days following (x) the occurrence of any such Asset Sale or (y) the receipt of Net Cash Proceeds from any Casualty Event, a Responsible Officer of the Borrower states in its delivers to the Administrative Agent a notice of such event to the effect that the Borrower or the relevant applicable Subsidiary intends to reinvest, within 90 days of the applicable Disposition, apply the Net Cash Proceeds thereof in assets similar from such Casualty Event or Asset Sale, to repair, refurbish, restore, replace or rebuild the assets which were asset subject to such DispositionCasualty Event or Asset Sale, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds of such Casualty Event or Asset Sale may be applied for such purpose in lieu of such mandatory prepayment to the extent such Net Cash Proceeds of such Casualty Event or Asset Sale are actually reinvested applied for such purpose, provided, further, that, in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such event that Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay applied within one hundred and eighty (180) days following (x) the Obligations in occurrence of any such Asset Sale or (y) the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancefrom any Casualty Event, the Borrower shall prepay make a mandatory prepayment of the Obligations Loans in an aggregate amount equal to one hundred percent (100% %) of the amount unused balance of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to Proceeds received by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneyof its Subsidiaries with respect to such Casualty Event or Asset Sale, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1as the case may be, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of with such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary amount of Net Cash Proceeds being allocated to the prepayment of principal, the payment of accrued and unpaid interest on such issuance, Borrower shall prepay the Obligations in an aggregate principal amount equal to 100% of the amount of Loans being prepaid and the Prepayment Premium such that the full Prepayment Price applicable to such mandatory prepayment is paid with such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Credit Agreement and Guaranty (ArcherDX, Inc.), Credit Agreement and Guaranty (ArcherDX, Inc.)
Mandatory Prepayments. (i) If Borrower Within five (5) Business Days of the receipt of Net Cash Proceeds from the occurrence of any one or any Subsidiary shall at any time more Casualty Events or from time to time make or agree to make a Disposition or shall suffer an Event Specified Asset Sales, in either case, in excess of Loss with respect to any Property$1,000,000 in the aggregate per annum, then the Borrower shall promptly notify Bank cause an amount equal to one hundred percent (100%) of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by applied to (i) the prepayment of the outstanding principal amount of the Loans, (ii) the payment of accrued and unpaid interest on such principal amount being prepaid and (iii) the payment of the Early Prepayment Fee (if applicable), the Exit Fee and the Buyout Amount (if applicable), with such amount of Net Cash Proceeds being allocated to such prepayment and payments such that the full amount of the principal amount of the Loans being prepaid, together with any accrued and unpaid interest thereon, the Early Prepayment Fee (if applicable), the Exit Fee and the Buyout Amount (if applicable) payable hereunder shall be paid in full with such Net Cash Proceeds. Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing or shall immediately result therefrom, if, within three (3) Business Days following the occurrence of any such Casualty Event or Specified Asset Sale, a Responsible Officer of the Borrower delivers to the Agent a notice to the effect that the Borrower intends to reinvest the Net Cash Proceeds from such Casualty Event or Specified Asset Sale, to repair, refurbish, restore, replace or rebuild the asset subject to such Casualty Event or Specified Asset Sale or to the cost of purchasing or constructing other assets useful in the business of the Borrower or its Subsidiaries or in connection with a Permitted Acquisition or other similar Investment permitted hereunder, then such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition Casualty Event or Event Specified Asset Sale may be applied for such purpose in lieu of Loss, Borrower shall prepay the Obligations in an aggregate amount equal such mandatory prepayment otherwise required pursuant to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (yb) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds of such Casualty Event or Specified Asset Sale are actually reinvested applied for such purpose; provided that, in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent event such Net Cash Proceeds have not been so reinvestedapplied within three hundred sixty (360) days following the occurrence of such Casualty Event or Specified Asset Sale, the Borrower shall promptly prepay cause one hundred percent (100%) of the Obligations in the amount unused balance of such Net Cash Proceeds not so reinvested. The to be applied to (i) the prepayment of the outstanding principal amount of each the Loans, (ii) the payment of accrued and unpaid interest on such principal amount being prepaid and (iii) the payment of the Early Prepayment Fee (if applicable), the Exit Fee and the Buyout Amount (if applicable), with such amount of Net Cash Proceeds being allocated to such prepayment and payments such that the full amount of the principal amount of the Loans being prepaid, together with any accrued and unpaid interest thereon, the Early Prepayment (if applicable), the Exit Fee and the Buyout Amount (if applicable) payable hereunder shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds with such unused balance of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertyNet Cash Proceeds.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities Within three (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank 3) Business Days of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancefrom any Permitted Convertible Indebtedness, the Borrower shall prepay the Obligations in cause an aggregate amount equal to 100% of such Net Cash Proceeds to be applied to (i) the prepayment of the outstanding principal amount of the Loans to the extent necessary so that the outstanding principal amount, after giving effect to such prepayment, does not exceed $50,000,000, (ii) the payment of accrued and unpaid interest on such principal amount being prepaid and (iii) the payment of the Early Prepayment Fee (if applicable), the Exit Fee and the Buyout Amount (if applicable), with such amount of Net Cash Proceeds being allocated to such prepayment and payments such that the full amount of the principal amount of the Loans being prepaid, together with any accrued and unpaid interest thereon, the Early Prepayment Fee (if applicable), the Exit Fee and the Buyout Amount (if applicable) payable hereunder shall be paid in full with such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Credit Agreement (Oyster Point Pharma, Inc.), Credit Agreement (Oyster Point Pharma, Inc.)
Mandatory Prepayments. (ia) If On the first Business Day following the delivery of a Mandatory Prepayment Notice from the Calculation Agent to the Borrower (with a copy thereof to the Administrative Agent and the Lenders) stating that a Mandatory Prepayment Event has occurred (which need not be continuing) (provided that, subject to the last sentence of Section 2.05(b), if the Calculation Agent fails to deliver such Mandatory Prepayment Notice by 6:00 p.m. on the date the relevant Mandatory Prepayment Event occurs, any Lender may deliver or cause to be delivered the Mandatory Prepayment Notice in respect of such Mandatory Prepayment Event to the Borrower (with a copy thereof to each other Lender and Agent) with the same effect as if such Mandatory Prepayment Notice was delivered by the Calculation Agent; provided, further, that any Subsidiary shall at any time or from time failure to time make or agree to make so deliver a Disposition or shall suffer an Event copy of Loss with respect a Mandatory Prepayment Notice to any Property, then Borrower Lender or Agent shall promptly notify Bank not invalidate the effectiveness of such proposed Disposition or Event of Loss (including Mandatory Prepayment Notice) the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate outstanding principal amount equal to 100% of the amount of Loans, together with all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection accrued interest thereon and shall not require pay any such prepayment with respect additional amounts required pursuant to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require Section 3.04 and any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then existsapplicable Prepayment Amount, and all other Obligations (z) in the case of any Disposition not covered by clause (y) above, so long as other than contingent obligations for which no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary claim has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertymade).
(b) For purposes of the delivery and receipt of any Mandatory Prepayment Notice (including under Section 10.02), (i) the Borrower consents to the delivery of such Mandatory Prepayment Notice by electronic communications and (ii) If after the Closing Date Borrower Borrower’s “normal business hours” shall be 9:00 a.m. to 6:00 p.m., each Business Day. Notwithstanding anything to the contrary contained herein, in the event that a Mandatory Prepayment Event occurs following any Potential Adjustment Event, Issuer Merger Event or any Subsidiary shall issue new equity securities Spin-Off Event, then the Calculation Agent and the Lenders agree not to send a Mandatory Prepayment Notice until such time as Calculation Agent has made its (whether common or preferred stock or otherwise)or, other than equity securities issued in connection with subject to the exercise of employee stock options, Borrower shall promptly notify Bank terms and conditions of the estimated Net Cash Proceeds of such issuance proviso to be received by or for this sentence, the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay Required Lenders have made their) determination as to the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amountappropriate adjustments, if any, necessary to reduce be made to (i) the sum of Minimum Price, (ii) the aggregate principal amount of Revolving Loans Maximum Share Number, (iii) the LTV Margin Call Level and/or (iv) the LTV Reset Level, in each case, in accordance with and L/C Obligations then outstanding subject to the amount provisions of Section 1.02(d); provided that, if the Calculation Agent fails to which make its determination with respect to such adjustments by 6:00 p.m. on the Revolving Credit Commitment has been so reduceddate the relevant Mandatory Prepayment Event occurs, the Required Lenders (provided that the outstanding Loans held by, and unused Commitments of, the Calculation Agent and its Affiliates shall be excluded for purposes of making such determination of Required Lenders) may make such adjustments, if any, in each case, in accordance with and subject to the provisions of Section 1.02(d), with the same effect as if they were made by the Calculation Agent.
(vic) If at Subject to Section 2.11(j), any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be prepayment described in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) 2.05 shall be made by to the payment Administrative Agent for the ratable accounts of the principal amount Lenders. The Administrative Agent shall forward to be prepaid and, in the case each Lender its Ratable Share of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3each such payment.
Appears in 2 contracts
Sources: Margin Loan Agreement (Liberty Broadband Corp), Margin Loan Agreement and Collateral Account Control Agreement (Liberty Broadband Corp)
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 500,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 180 day period. Promptly after the end of such 90 180 day period, Borrower shall notify Bank Administrative Agent whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans pro rata until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank Administrative Agent so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank Administrative Agent (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) [Reserved].
(iii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)any Indebtedness for Borrowed Money, other than equity securities issued in connection with the exercise of employee stock optionsIndebtedness for Borrowed Money permitted by Section 6.1, Borrower shall promptly notify Bank Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loans pro rata until paid in such amounts full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank Administrative Agent for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 6.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents[Reserved].
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.132.10, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b2.9(b) shall be applied first to the Term Loan Borrowings of Base Rate Loans until paid payment in full and then to the Revolving Loans (thereof with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be any balance applied to Borrowings of Eurodollar Loans in the Revolving Loans outstandingorder in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b2.9(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank Lenders under Section 3.32.16.
Appears in 2 contracts
Sources: Credit Agreement (Duluth Holdings Inc.), Credit Agreement (Duluth Holdings Inc.)
Mandatory Prepayments. (ia) If on any date the Borrower or any Subsidiary of its Subsidiaries shall at receive Net Cash Proceeds from any time Asset Sale or from time to time make or agree to make a Disposition or shall suffer an Recovery Event of Loss then, with respect to any Property, then Borrower shall promptly notify Bank an amount equal to 75% of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by (“Allocated Proceeds”; provided that the Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such proceeds are received toward the prepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (i) and (ii) above, to the extent that the terms of the documentation for any First Lien Notes require that a portion of such Allocated Proceeds be applied to purchase First Lien Notes pursuant to a mandatory offer to purchase such First Lien Notes, such Allocated Proceeds may be applied to prepay Term Loans in accordance with Section 2.9(c) and purchase First Lien Notes on a pro rata basis based on the respective amounts of Term Loans and First Lien Notes then outstanding.
(b) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds of such Disposition or from any Debt Incurrence Prepayment Event of Loss, Borrower shall prepay the Obligations in then with respect to an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c).
(c) The application of any amounts required to be applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, a prepayment of Term Loans pursuant to Section 2.9(a) shall be made on a pro rata basis to each Class of Term Loans then outstanding (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds except to the extent that any Incremental Activation Notice for any Class of Incremental Term Loans or Extended Term Loans provide that such Net Cash Proceeds are actually reinvested Incremental Term Loans or Extended Term Loans shall participate on a lesser basis or not participate at all). The application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(b) shall be made, at the Borrower's option (by notice to the Administrative Agent), either (i) on a pro rata basis to each Class of Term Loans then outstanding or (ii) to the Term Loans of each Class in direct order of maturity (based on the respective Term Maturity Dates for such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, Classes) and, to if more than one Class of Term Loans has the extent same Term Maturity Date, on a pro rata basis between such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay Classes of Term Loans based on the Obligations in the respective principal amount of such Net Cash Proceeds not so reinvested. The amount Classes of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loansoutstanding. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first Amounts required to be applied to the Revolving prepayment of Term Loans until paid in full with of any remaining balance to Class shall be applied first, to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent ABR Loans of such Class and, second, to Eurodollar Loans of such Class. Each prepayment of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Term Loans under this Section 2.8(b) 2.9 shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made accompanied by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of such prepayment together with any amounts due Bank under Section 3.3on the amount prepaid.
Appears in 2 contracts
Sources: Credit Agreement (Charter Communications, Inc. /Mo/), Credit Agreement (Charter Communications, Inc. /Mo/)
Mandatory Prepayments. (a) If Indebtedness shall be issued or incurred by any Loan Party (i) If Borrower not permitted to be incurred or any Subsidiary shall at any time issued pursuant to Section 7.2 or from time (ii) that is intended to time make or agree to make a Disposition or shall suffer an Event of Loss with constitute Credit Agreement Refinancing Indebtedness in respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andTerm Loans, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the Net Cash Proceeds thereof shall be applied as soon as practicable but in any event within five (5) Business Days after such issuance or incurrence toward the prepayment of the Term Loans on a pro rata basis (except, as to Term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan) as set forth in Section 2.11(d); provided, that all prepayments under this Section 2.11(a) shall be accompanied by the Repricing Premium, if applicable.
(b) Subject to clause (e) below, if on any date any Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied as soon as practicable but in any event within ten (10) days after the date of receipt thereof toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d) on a pro rata basis (except, as to Term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d); provided, further, that with respect to any prepayment event referenced in this paragraph (b), (i) the Borrower shall not be obligated to make any prepayment otherwise required by this paragraph (b) unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sale and Recovery Events, after giving effect to the reinvestment rights set forth herein, exceeds $5,000,000 (the “Prepayment Trigger”) in any fiscal year of the Borrower, but then from all such Net Cash Proceeds; provided that Proceeds (xexcluding amounts below the Prepayment Trigger) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (zii) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make may use a mandatory prepayment under this subsection in respect portion of such Net Cash Proceeds to prepay or repurchase First Lien Senior Secured Notes or any other Indebtedness secured by the Collateral on a pari passu basis with the Liens securing the Obligations (the “Other Applicable Indebtedness”) to the extent required pursuant to the terms of the documentation governing such Other Applicable Indebtedness, in which case, the amount of prepayment required to be made with respect to such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after pursuant to this Section 2.11(b) shall be deemed to be the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, amount equal to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in product of (x) the amount of such Net Cash Proceeds not so reinvested. The multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of each Term Loans required to be prepaid pursuant to this paragraph (b) and the denominator of which is the sum of the outstanding principal amount of such prepayment shall Other Applicable Indebtedness required to be applied first prepaid pursuant to the terms of the documents governing such Other Applicable Indebtedness and the outstanding principal amount of Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account required to be disbursed prepaid pursuant to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertythis paragraph.
(iic) If after Subject to clause (e) below, if, for any fiscal year of the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection commencing with the exercise of employee stock optionsfiscal year ending September 30, 2015, there shall be Excess Cash Flow, the Borrower shall promptly notify Bank of shall, on the estimated Net relevant Excess Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceFlow Application Date, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% (i) the ECF Percentage of such Excess Cash Flow less (ii) the aggregate principal amount of all prepayments of Revolving Loans and Swingline Loans made during such fiscal year to the extent accompanying permitted optional reductions of the Revolving Commitments and the aggregate amount of cash used for all optional prepayments of Term Loans made during such Net Cash Proceedsfiscal year, toward the prepayment of the Term Loans as set forth in Section 2.11(d) on a pro rata basis (except, as to term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan\). Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the rights and remedies earlier of Bank for any breach of Section 7.5 (Maintenance of Subsidiariesi) or Section 8.1(i) (Change of Control) hereof or any other terms the date on which the financial statements of the Loan DocumentsBorrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.
(iiid) If after The application of any prepayment of Tranche B Term Loans pursuant to Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans; provided that, if such application would be inconsistent with Section 2.17(b), then Section 2.17(b) shall apply. Each prepayment of Tranche B Term Loans under this Section 2.11 shall be accompanied by accrued interest to the Closing Date Borrower date of such prepayment on the amount prepaid and by any amounts payable pursuant to Section 2.20.
(e) Notwithstanding any other provisions of this Section 2.11, (i) to the extent that any of or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of all the estimated Net Cash Proceeds of such issuance any Disposition by a Foreign Subsidiary or Domestic Foreign Holding Company giving rise to be received by or for a prepayment pursuant to Section 2.11(b) (a “Foreign Disposition”), the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of any such issuanceprepayment event pursuant to Section 2.11(b) from a Foreign Subsidiary (a “Foreign Prepayment Event”), Borrower shall prepay or Excess Cash Flow would be (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational or constitutive documents or any agreement or (z) subject to other onerous organizational or administrative impediments, from being repatriated to the Obligations in an aggregate amount equal to 100% of United States, the amount portion of such Net Cash Proceeds. Each such prepayment shall Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans as provided in Section 2.11(b) or (c), as the case may be, and instead, such amounts may be retained by the applicable Foreign Subsidiary or Domestic Foreign Holding Company (the Borrower hereby agrees to use commercially reasonable efforts (as determined in the Borrower’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational or constitutive impediment or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable law, applicable organizational or constitutive impediment or other impediment, such repatriation will be promptly effect and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional taxes, costs and expenses payable or reserved against as a result thereof) (whether or not repatriation actually occurs) to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms repayment of the Loan Documents.
Term Loans pursuant to this Section 2.11 to the extent provided herein and (ivii) If after to the Closing Date extent that Borrower has determined in good faith that repatriation of any of or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of all the estimated Net Cash Proceeds of any Foreign Disposition, any Foreign Prepayment Event or Excess Cash Flow would have an adverse tax cost consequence with respect to such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds or Excess Cash Flow (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so Holdings, the Borrower, any Restricted Subsidiary or any of their respective affiliates and/or equity partners would incur a tax liability, including a tax dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary or Domestic Foreign Holding Company. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(f) In connection with (i) any optional prepayment of borrowings hereunder, the Borrower making the prepayment or (ii) any mandatory prepayment of borrowings hereunder, the Borrower making the prepayment shall, in each case, subject to the provisions of this paragraph and paragraph (d) of this Section, select the borrowing or borrowings to be prepaid and shall specify such selection in the notice of such issuance, Borrower shall prepay prepayment. The Administrative Agent will promptly notify each Lender holding the Obligations in an aggregate amount equal to 100% applicable Class of Term Loans of the amount contents of the Borrower’s prepayment notice and of such Net Cash ProceedsLender’s pro rata share of the prepayment. Each such Term Loan Lender may reject all (but not less than all) of its pro rata share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (b) or (c) of this Section 2.11 by providing notice to the Administrative Agent at or prior to the time of such prepayment; provided that for the avoidance of doubt, no Lender may reject any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness. Any Declined Proceeds remaining thereafter shall be applied in such amounts and to such Obligations as agreed to retained by the Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents(“Retained Declined Proceeds”).
(vg) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding Notwithstanding anything herein to the amount contrary, the Lenders holding any Initial Term Loans shall always be entitled to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum pro rata payment in respect of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Initial Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Credit Agreement (National Mentor Holdings, Inc.), Credit Agreement (National Mentor Holdings, Inc.)
Mandatory Prepayments. (ia) If Borrower [Intentionally Omitted]
(b) In the event that on or before the 60th day following the entry by the Bankruptcy Court of the Interim Order, the Final Order has not been entered by the Bankruptcy Court, the Borrowers shall prepay all outstanding Loan Document Obligations on such day.
(c) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of Holdings or any Subsidiary shall at any time or from time to time make or agree to make in respect of a Disposition or shall suffer an Event of Loss with respect to any PropertyPrepayment Event, then Borrower shall promptly notify Bank of the Borrowers shall, within five Business Days after such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andare so received, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations outstanding Loans in an aggregate principal amount equal to 100% the Applicable Prepayment Percentage of the amount of all such Net Cash Proceeds; provided that, in the case of any Prepayment Event that (x) so long as no Default is an Asset Sale, if the Borrowing Agent shall deliver to the Administrative Agent a certificate of a Financial Officer of the Borrowing Agent, on or Event of Default then existsprior to the date that a prepayment would otherwise be required hereunder if such certificate were not delivered, this subsection shall not require any such prepayment with respect to the effect that Holdings and the Subsidiaries intend to apply the Net Cash Proceeds received on account from such Asset Sale (or a portion thereof specified in such certificate), within the Reinvestment Period applicable to such Net Cash Proceeds, to acquire real property, equipment or other tangible or intangible assets to be used in the business of an Event of Loss so long as Holdings and the Subsidiaries (which real property, equipment or other assets must be assets that become Collateral to the extent that such Net Cash Proceeds are applied attributable to replace or restore the relevant Property in accordance with the relevant Collateral Documentsassets that were Collateral), (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as and certifying that no Default or Event of Default then exists, has occurred and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Dispositionis continuing, then Borrower no prepayment shall not be required pursuant to make a mandatory prepayment under this subsection paragraph in respect of such Net Cash Proceeds to (or the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount portion of such Net Cash Proceeds specified in such certificate, if applicable) except to the extent of any such Net Cash Proceeds that have not been so reinvested. The amount applied by the end of each such Reinvestment Period, at which time a prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations required in an aggregate principal amount equal to 100% of the amount Applicable Prepayment Percentage of such Net Cash ProceedsProceeds that have not been so applied. Each such prepayment shall be applied For purposes hereof, “Reinvestment Period” means, in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies respect of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds Proceeds, the period beginning on the date of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts Proceeds and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsending 180 days thereafter.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Mandatory Prepayments. (ia) If Borrower or Subject to Section 7.1 hereof, when any Subsidiary shall at Loan Party Disposes of any time or from time to time make or agree to make a Collateral other than (u) Inventory in the Ordinary Course of Business, (v) any Sale and Leaseback Transaction on Term Loan Priority Collateral owned by any Loan Party as of the Closing Date and consummated in accordance with Section 7.11 hereof, (w) the Disposition or shall suffer an Event of Loss with respect to the GMF Collateral, (x) any PropertyEquity Interests issued by the Borrower, then (y) any Extraordinary Receipts and (z) until the Term Loan is paid in full, any other Disposition of assets solely constituting Term Loan Priority Collateral of any Loan Party, the Borrower shall promptly notify Bank repay the Advances in an amount equal to the Net Proceeds of such proposed Disposition or Event Disposition, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of Loss (including such Net Proceeds, and until the amount date of payment, such Net Proceeds shall be held in trust for Agent; provided however, that if the Borrower shall deliver to the Agent a certificate of a senior officer of the estimated Borrower to the effect that the applicable Loan Party’s intent to apply the Net Cash Proceeds from such event (or a portion thereof specified in such certificate), to be reinvested within 180 days after receipt of such Net Proceeds to acquire similar assets subject to such event and certifying no Default has occurred and is continuing or would result therefrom then no prepayment shall be received by Borrower or such Subsidiary required pursuant to this paragraph in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of specified in such certificate. The foregoing shall not be deemed to be implied consent to any such Disposition or Event of Lossotherwise prohibited by the terms and conditions hereof. Such repayments shall be applied first, Borrower shall prepay to the Obligations in an aggregate amount equal to 100% outstanding principal balance of the amount Revolving Advances and Swing Loans (in the order determined by Agent) and second, to be held by Agent as cash collateral to the extent of all such Net Cash Proceedsany outstanding Letter of Credit Obligations; provided however that (x) so long as if no Default or Event of Default then existshas occurred and is continuing, this subsection such repayments shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are be applied to replace or restore cash collateralize any Obligations related to outstanding Letters of Credit last in such order as Agent may determine, subject to the relevant Property Borrower’s ability to reborrow Revolving Advances in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyterms hereof.
(iib) If [Reserved.]
(c) In the event of any issuance of Indebtedness (other than Permitted Indebtedness) by any Loan Party, the Borrower shall, no later than five (5) Business Days after the Closing Date receipt by the Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to the Net Proceeds of such issuance to of Indebtedness. Such repayments will be applied in the same manner as set forth in Section 2.20(a) hereof.
(d) All proceeds received by Loan Parties or for the Agent (i) under any insurance policy on account of Borrower damage or such Subsidiary destruction of any assets or property of any Loan Party (to the extent the Term Loans has not been paid in respect thereof. Promptly upon receipt by Borrower full, constituting ABL Priority Collateral), or such Subsidiary (ii) as a result of Net Cash Proceeds any taking or condemnation of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment any assets or property shall be applied in such amounts and accordance with Section 6.6 hereof, provided however, that if the Borrower shall deliver to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies Agent a certificate of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms a senior officer of the Borrower to the effect that the applicable Loan Documents.
Party’s intent to apply the Net Proceeds from such event (iii) If or a portion thereof specified in such certificate), within 180 days after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each Proceeds to acquire similar assets subject to such event and certifying no Default has occurred and is continuing or would result therefrom then no prepayment shall be applied required pursuant to this paragraph in respect of the Net Proceeds specified in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentscertificate.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Revolving Credit and Security Agreement (Nn Inc), Revolving Credit and Security Agreement (Nn Inc)
Mandatory Prepayments. (ia) If on any date the Borrower or any Subsidiary its Subsidiaries shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated receive Net Cash Proceeds to be received by from any Prepayment Event, the Borrower or such Subsidiary shall promptly, and in respect thereof) andany event within ten Business Days, promptly upon receipt by Borrower or such Subsidiary make a prepayment of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make prepay the Loans as a mandatory prepayment result of a Prepayment Event under this subsection clause (a) or (b) of the definition thereof if (and to the extent in excess of the Prepayment Threshold Amount), for any fiscal year of the Borrower with respect of to such Net Cash Proceeds received by the Borrower or any of its Subsidiaries from any of the events described in clause (a) or (b), respectively, of such definition that are in excess of US$1,000,000 (with amounts under each such clause (a) and clause (b) being separately calculated as in excess of US$1,000,000 (each, the “Prepayment Threshold Amount”)), the Borrower shall have delivered to the extent Administrative Agent a Reinvestment Notice prior to the date on which a prepayment would otherwise be required under this Section 2.8(a). If the Borrower delivers a Reinvestment Notice pursuant to the proviso to the immediately preceding sentence, such Net Cash Proceeds are actually reinvested may be applied for the purposes set forth in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, Reinvestment Notice and, if not so applied by the Reinvestment Prepayment Date with respect to the extent such Net Cash Proceeds have not been so reinvestedrelevant Prepayment Event, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first on such date to prepay the Loans in accordance with clause (c) below, until such outstanding Term Loans until paid are repaid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyfull.
(iib) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued Amounts to be applied in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced prepayments made pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
clause (vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(ba) shall be applied (i) first to the Term Loan until Tranche B Loans and (ii) second, once all amounts due under the Tranche B Loans have been paid in full and full, to reduce permanently the Tranche A Commitments pro rata. After giving effect to such Commitment reductions, if the aggregate amount of Tranche A Loans outstanding would exceed the then amount of the Tranche A Commitments, the Borrower shall repay each such excess amount promptly (and, in any event, within ten Business Days) after the event giving rise to the Revolving Loans (with a concurrent permanent such reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Tranche A Commitments.
(c) Each prepayment of Loans under this Section 2.8(b) 2.8 shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, together with accrued interest thereon to the date of such prepayment together with on the amount so prepaid and any other amounts due Bank pursuant to Section 3.4. Any amount prepaid under this Section 3.32.8 may not be reborrowed.
Appears in 2 contracts
Sources: Credit Agreement (Kansas City Southern), Credit Agreement (Kansas City Southern De Mexico, S.A. De C.V.)
Mandatory Prepayments. (i) If Borrower or one of its Subsidiaries sells or finances any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds Collateral, or if any of the Collateral is lost, damaged, destroyed or taken by condemnation, Borrower shall, unless otherwise agreed by all Lenders, pay to be Agent for the ratable benefit of Lenders, as and when received by Borrower or such Subsidiary and as a mandatory prepayment of the Loans, as herein provided, a sum equal to the proceeds (including insurance and condemnation payments, but net of costs and taxes incurred in respect thereofconnection with such event) and, promptly upon receipt received by Borrower or such Subsidiary for such sale, financing, loss, damage, destruction or condemnation. To the extent that the Collateral sold, financed, leased, lost, damaged, destroyed or condemned consists of Accounts, Inventory or other Property which is not "Collateral," as defined in the Exchange Intercreditor Agreement, the applicable prepayment shall be applied to reduce the outstanding principal balance of the Revolving Credit Loans, but shall not permanently reduce the Revolving Loan Commitments. To the extent that the Collateral sold, financed, leased, lost, damaged, destroyed, or condemned consists of Tandem Mill Collateral, Hot Mill Collateral, Tin Mill Collateral, or other Property which is "Collateral" as defined in the Exchange Intercreditor Agreement, the amount of such prepayment shall be as set forth in the Exchange Intercreditor Agreement, such prepayment will be applied to reduce the outstanding principal balance of the Revolving Credit Loans and, to the extent set forth below, such prepayment shall permanently reduce the Revolving Loan Commitments:
(i) in the case of an Approved Sale, by an amount equal to the Net Cash Proceeds of such Disposition or Event Approved Sale required by the terms of Loss, Borrower shall prepay the Obligations in an aggregate amount equal Majority Lenders' consent to 100% of the amount of all such Net Cash Proceeds; provided that transaction (xif required) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are be paid to Agent and applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, Revolving Credit Loans;
(y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (zii) in the case of any Disposition an Approved Sale and Leaseback not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar related to the assets which were subject to such DispositionTandem Mill Collateral, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds by an amount equal to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance Approved Sale and Leaseback required by the terms of Majority Lenders' consent to such transaction (if required) to be received paid to Agent and applied to the Revolving Credit Loans;
(iii) in the case of an Approved Financing Transaction constituting a Permitted Tandem Mill Transaction, by an amount equal to the lesser of $25,000,000 and the amount of the Tandem Mill Financing Proceeds paid to Agent and applied to the Revolving Credit Loans, but only to the extent such reduction is required pursuant to the terms of clause (iv) of the definition of the term "Permitted Indebtedness" contained in the Exchange Note Indenture or for clause (a) of the account definition of Borrower the term "Permitted Liens" contained in the Exchange Note Indenture; and
(iv) in the case of proceeds of any of the Tandem Mill Collateral, any of the Tin Mill Collateral or such Subsidiary in respect thereof. Promptly upon receipt by Borrower any of the Hot Mill Collateral that consists of insurance arising from damage to or such Subsidiary of Net Cash Proceeds destruction of such issuanceProperty or proceeds of condemnation awards with respect to such Property, Borrower by an amount set forth in the next paragraph. All of the proceeds of insurance or condemnation described in clause (iv) above shall prepay be promptly delivered to Agent and placed in a cash collateral account in a financial institution acceptable to Agent that is pledged to Agent as security for the Obligations in an aggregate amount equal a manner acceptable to 100% Agent (a "Pledged Account") for a period of up to 30 days pending resolution of its application (provided, that if such pledged amounts are at any time thereafter applied to the Revolving Credit Loans, the Revolving Loan Commitments shall be permanently reduced by the amount of such Net Cash Proceedspledged amounts so applied). Each If Borrower shall determine that it desires to repair, rebuild or replace the applicable Property, such prepayment amount shall remain in such Pledged Account and shall be applied released to Borrower as required in order to permit the repair, rebuilding or replacement of such Property; provided, that if (i) an Event of Default is then in existence or occurs during the period that all or a portion of such proceeds are located in the Pledged Account or (ii) such proceeds are not used for the purpose of repairing, rebuilding or replacing of such Property prior to the expiration of the Restoration Period, Majority Lenders shall have the right to (a) suspend Borrower's right to access such proceeds in the Pledged Account and (b) apply such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid outstanding principal balance of the Revolving Credit Loans and shall permanently reduce the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over Revolving Loan Commitments by the amount of such proceeds so applied. If Borrower shall determine not to repair, rebuild or replace the excess to Bank as and for a mandatory prepayment on applicable Property, such Obligations, with each such prepayment first to amounts shall be applied to the Revolving Loans until paid in full with any remaining outstanding principal balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of Revolving Credit Loans and shall permanently reduce the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over Loan Commitments by the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceededproceeds so applied.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Loan and Security Agreement (Weirton Steel Corp), Loan and Security Agreement (Weirton Steel Corp)
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time Subject to time make or agree the proviso below, and except to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of the extent such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds have been used to be received by prepay the obligations under the Parent Credit Agreement, upon the occurrence of any Casualty Event, the Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary shall make a mandatory prepayment of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to the sum of (x) one hundred percent (100% %) of the Net Cash Proceeds received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (y) any accrued but unpaid interest on such principal amount of all such Net Cash Proceedsthe Term Loan being prepaid; provided that (x) so long as no Default or Event of Default then existshas occurred and is continuing at the time the Borrower or any Obligor shall have received such Net Cash Proceeds, this subsection shall not require if, within five (5) Business Days following the occurrence of any such prepayment with respect Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent a notice (each, a “Casualty Event Reinvestment Notice”) to the effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds received on account from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of an Event purchase or construction of Loss so long as other assets useful in the business of Parent or its Subsidiaries, then such Net Cash Proceeds are of such Casualty Event may be applied to replace or restore the relevant Property for such purpose in accordance with the relevant Collateral Documentslieu of such mandatory prepayment, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 provided further that, in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvestedapplied within one hundred eighty (180) days following the occurrence of such Casualty Event, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such make a mandatory prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to the sum of (A) one hundred percent (100% %) of the amount unused balance of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to Proceeds received by the Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (B) any accrued but unpaid interest (including, but not limited to, any accrued but uncapitalized PIK Interest on the First Amendment Term Loan and the Second Amendment Term Loan) on such principal amount of the Term Loan being prepaid, provided, further, that to the extent that the property subject to the Casualty Event is Collateral, then any such acquired, replaced, repaired, purchased or constructed property shall be Collateral in which the Administrative Agent, for the benefit of the Lenders, has been granted a security interest under the Security Documents.
(iiiii) If after Upon the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneydisposition and sale of the Tucson Real Estate in accordance with Section 8.23, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, the Borrower shall promptly notify Bank make a mandatory prepayment of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100% %) of the Net Cash Proceeds received by the Borrower in connection with such sale, to be applied pursuant to Section 3.03(d) below.
(iii) Upon the receipt of upfront proceeds pursuant to Section 8.18(b), Parent shall make a mandatory prepayment of the Term Loan in an aggregate amount not to exceed the lesser of (i) the entire outstanding Obligations as of such Net Cash Proceeds. Each such date and (ii) $2,000,000, to be applied pursuant to Section 3.03(d) below; provided that if a sale of the North Carolina Business occurs, then no mandatory prepayment shall be applied in such amounts and required pursuant to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsthis clause (b)(iii).
(iv) If after Upon the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debtsale of the North Carolina Business in accordance with Section 8.27, the Borrower shall promptly notify Bank make a mandatory prepayment of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100% %) of the amount of such Net Cash Proceeds. Each Proceeds received by any Obligor in connection with such prepayment shall sale, to be applied in such amounts and first, to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms payment of the Loan Documents“Obligations” (as defined in the Parent Credit Agreement) and second, pursuant to Section 3.03(d) below. Notwithstanding the forgoing, to the extent the “Obligations” (as defined in the Parent Credit Agreement) have been satisfied in full, the Obligors may retain up to $5,450,000 of Net Cash Proceeds received on the closing date of the sale of the North Carolina Business, provided that such funds are (A) held in a Controlled Account, (B) used to pay employee retention bonuses in an amount not to exceed $450,000, and (C) except as set forth in clause (B), used solely for working capital purposes.
(v) Upon the receipt by any Obligor of any NC Earnout or any NC Escrow Release, the Borrower shall, on each shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the Revolving Credit Commitment is reduced Net Cash Proceeds received by such Obligor to be applied pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced3.03(d) below.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.), Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (ia) If Borrower Subject to clauses (b) and (c) below, on each occasion that the Company or any Subsidiary shall at receives any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereofof any Prepayment Event, the Company shall promptly (and in any event within five Business Days) and, promptly upon receipt by Borrower or such Subsidiary apply 100% of the Net Cash Proceeds of received with respect thereto to prepay outstanding Term Loans, it being agreed that to the extent no Term Loans are then outstanding at such Disposition or Event of Losstime, Borrower to the extent any Revolving Loans are outstanding on such date, the Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment Revolving Loans with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied on such date). Each prepayment of outstanding Loans required to replace be made pursuant to this paragraph shall be allocated pro rata between the Term Loans (including the Other Term Loans (if any)) or restore the relevant Property in accordance with the relevant Collateral Documentsif applicable, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then existsRevolving Loans and, and (z) in the case of Term Loans, applied against the remaining scheduled installments of principal due in respect of the Term Loans, including (unless otherwise specified in the applicable Incremental Assumption Agreement) the Other Term Loans (if any) as directed by the Company.
(b) Notwithstanding clause (a) above, if (x) the Company shall deliver a certificate of an Executive Officer to the Administrative Agent at or promptly following the time of receipt of any Disposition not covered by clause amount that would otherwise constitute Net Cash Proceeds of an Asset Sale setting forth the Company’s intent to reinvest such proceeds in productive assets or businesses within 365 days of receipt of such proceeds (the “Investment Period”) and (y) above, so long as no Default or Event of Default then existsshall have occurred and shall be continuing at the time of the delivery of such certificate, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such Investment Period (or, if Borrower states in its notice of the Company commits to reinvest such event that Borrower or the relevant Subsidiary intends to reinvestproceeds within such Investment Period, within 90 180 days of the applicable Dispositionend of such Investment Period), the at which time such proceeds shall be deemed to be Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower Proceeds.
(c) The Company shall not be required to make a mandatory prepayment prepay by any amount that would otherwise be required pursuant to clause (a) above to the extent (i) the relevant Net Cash Proceeds are generated by any Foreign Subsidiary and the repatriation to the Company of any such Net Cash Proceeds would be prohibited, restricted or delayed under this subsection in respect any applicable law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors or officers or (ii) the relevant Net Cash Proceeds are generated by any Foreign Subsidiary and the repatriation of such Net Cash Proceeds to the extent Company would result in adverse tax consequences as reasonably determined by the Company; provided that upon the Company obtaining knowledge that such circumstance in clause (i) and/or clause (ii), as applicable, ceases to apply, such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full deemed received for purposes of clause (a) above and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition any prepayment or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyreduction requirements applicable thereto.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 2 contracts
Sources: Credit Agreement (Regal Beloit Corp), Credit Agreement (Regal Beloit Corp)
Mandatory Prepayments. (ia) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2) shall be incurred by the Borrower or any Domestic Subsidiary shall at any time or from time to time make or agree to make that is a Disposition or shall suffer Restricted Subsidiary, an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received thereof shall be applied on account the date of an Event receipt of Loss so long as such Net Cash Proceeds are applied to replace toward the prepayment of the Term Loans as set forth in Section 2.12(d).
(b) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection any Domestic Subsidiary that is a Restricted Subsidiary shall not require any such prepayment with respect to for its own account receive Net Cash Proceeds received on account of Dispositions during from any fiscal year of Borrower not exceeding $250,000 Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in the aggregate so long as no Default or Event of Default then existsrespect thereof, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof shall be applied on such date toward the prepayment of the Term Loans as set forth in assets similar to Section 2.12(d); provided that notwithstanding the assets which were subject to such Dispositionforegoing, then (i) the Borrower shall not be required to make prepay the Term Loans pursuant to this paragraph (b) in excess of the amount such that the Total Senior Secured Leverage Ratio immediately after such prepayment would be equal to or less than the Total Senior Secured Leverage Ratio immediately prior to effecting such Asset Sale (the amount of Net Cash Proceeds not required to prepay the Term Loans as a mandatory prepayment under result of this subsection provision is herein referred to as “Excess Sale Proceeds”), (ii) during any fiscal year, the Borrower shall not be permitted to deliver a Reinvestment Notice in respect of such Net Cash Proceeds to the extent that after giving effect to such Asset Sale or Recovery Event, such Net Cash Proceeds are actually reinvested in such similar assets Proceeds, together with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of all such issuance to Asset Sales and Recovery Events received in such fiscal year, would exceed 5% of Consolidated Total Assets, (iii) on each Reinvestment Prepayment Date, the Term Loans shall be received prepaid as set forth in Section 2.12(d) by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (iv) on the date (the “Trigger Date”) that is one year after any such Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2008, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such Net Cash Proceedsfiscal year to the extent accompanied by permanent optional reductions of the Revolving Commitments and all optional prepayments of the Term Loans during such fiscal year, in each case other than to the extent any such prepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the Term Loans as set forth in Section 2.12(d). Each such prepayment shall be applied 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 amounts and prepayment is made, are required to be delivered to the Administrative Agent. Notwithstanding the foregoing, all mandatory prepayments pursuant to this Section 2.12(c) shall be limited to the extent that the Borrower reasonably determines that such Obligations as agreed mandatory prepayments would result in adverse tax consequences related to the repatriation of funds in connection therewith by Borrower and Bank. Borrower acknowledges Foreign Subsidiaries of the Borrower; provided that its performance hereunder any amount so excluded from any such mandatory prepayment pursuant to the operation of this sentence shall not limit increase the rights and remedies of Bank for any breach of Section 7.5 Available Amount pursuant to clause (Maintenance of Subsidiariesa)(i) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsdefinition thereof.
(iiid) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance Amounts to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced connection with prepayments pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding 2.12 shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving prepayment of the Term Loans in accordance with Section 2.18(b) until paid in full with full. The application of any remaining balance prepayment pursuant to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) 2.12 shall be applied first made, first, to the Term Loan until paid in full and then Base Rate Loans and, second, to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstandingLIBO Rate Loans. Each prepayment of the Term Loans under this Section 2.8(b) 2.12 shall be made accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment described in Section 2.12(a) through (c) above (which, for the avoidance of doubt, includes prepayments of any New Term Loans) (such amounts, the “Prepayment Amount”), at any time when Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans as provided in paragraph (d) above, on the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Lender (which, for the avoidance of doubt, includes any Lender holding a New Term Loan) a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit J (or such other form approved by the payment Administrative Agent), and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the principal Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Mandatory Prepayment Date, the Borrower shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted (it being understood that any Lender’s failure to object prior to the relevant Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of the offer to prepay contained in such Prepayment Option Notice and the amount to be prepaid andin respect of Term Loans held by such Lender) prepayment as described above; provided that, in the case of following such offer and application, any Term Loans, accrued interest thereon amount remaining unapplied shall be returned to the date of prepayment together with any amounts due Bank under Section 3.3Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Allison Transmission Holdings Inc), Credit Agreement (Allison Transmission Holdings Inc)
Mandatory Prepayments. Within five (i5) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount Business Days of the estimated receipt of Net Cash Proceeds from the occurrence of any Casualty Event or Specified Asset Sale, Holdings and the Borrower shall apply an amount equal to be received by Borrower or such Subsidiary in respect thereofone hundred percent (100%) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds received by Holdings or any of its Subsidiaries with respect to such Disposition Casualty Event or Event Specified Asset Sale, as the case may be, to (i) the prepayment of Loss, Borrower shall prepay outstanding Loans and (ii) the Obligations in an aggregate payment of accrued and unpaid interest on the principal amount equal to 100% of the Loans being prepaid and the payment of the Early Prepayment Fee. Such Net Cash Proceeds shall be allocated to such prepayment and payments such that the full amount of all principal, interest and prepayment fees payable hereunder shall be paid with such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore . Notwithstanding the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) aboveforegoing, so long as no Default has occurred and is continuing or shall immediately result therefrom, if, within three (3) Business Days following the occurrence of any such Casualty Event or Specified Asset Sale, a Responsible Officer of Default then exists, if the Borrower states in its delivers to the Administrative Agent a notice of such event to the effect that the Borrower or the relevant applicable Subsidiary intends to reinvest, within 90 days of the applicable Disposition, apply the Net Cash Proceeds thereof in assets similar from such Casualty Event or Specified Asset Sale, to repair, refurbish, restore, replace or rebuild the assets which were asset subject to such DispositionCasualty Event or Specified Asset Sale or to the cost of purchase or constructing other assets useful in the business of the Borrower or its Subsidiaries, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds of such Casualty Event or Specified Asset Sale may be applied for such purpose in lieu of such mandatory prepayment otherwise required pursuant to this clause (b) to the extent such Net Cash Proceeds of such Casualty Event or Asset Sale are actually reinvested applied for such purpose; provided that, in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such event that Net Cash Proceeds have not been so reinvestedapplied within one hundred and eighty (180) days following the occurrence of such Casualty Event or Specified Asset Sale (or, if within such 180-day period the Borrower enters into a binding commitment to purchase or acquire such assets, within ninety (90) days from entering into such binding commitment), the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such make a mandatory prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations Loans in an aggregate amount equal to one hundred percent (100% %) of the amount unused balance of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and Proceeds received by Holdings or any of its Subsidiaries with respect to such Obligations Casualty Event or Specified Asset Sale, as agreed to by Borrower the case may be, together with payment of accrued and Bank. Borrower acknowledges that its performance hereunder shall not limit unpaid interest on the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms principal amount of the Loan Documents.
(iii) If after Loans being so prepaid and the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneyapplicable Early Prepayment Fee, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of with such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary amount of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding being allocated to the amount to which prepayment of principal, the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum payment of the accrued and unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment interest on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately being prepaid and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount Early Prepayment Fee such that the full payable with respect to be prepaid and, in the case such mandatory prepayment is paid with such unused balance of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3Net Cash Proceeds.
Appears in 2 contracts
Sources: Credit Agreement and Guaranty (Pear Therapeutics, Inc.), Credit Agreement and Guaranty (Pear Therapeutics, Inc.)
Mandatory Prepayments. 5.4.1 [Reserved].
5.4.2 Without limiting the obligation of Borrowers to obtain the consent of the Required Lenders pursuant to Section 10.2.6 to sales or dispositions of assets not otherwise permitted hereunder, within five (5) Business Days of receipt of Net Proceeds of any sale or other disposition of assets not in the Ordinary Course of Business (including as a result of casualty or condemnation (subject to Section 8.6.2) and excluding (i) If Borrower sales or any Subsidiary shall at any time other dispositions of Inventory, surplus, obsolete or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any worn-out Property, then Borrower shall promptly notify Bank Property no longer used or useful in such Obligor’s business, (ii) sales or other dispositions of such proposed Disposition or Event Real Estate pursuant to clause (n) of Loss the definition of “Permitted Asset Disposition”, and (including iii) the partial sale of the Laetitia Property pursuant to clause (o) of the definition of “Permitted Asset Disposition”) by any Obligor in excess of $100,000 in any Fiscal Year (with only the amount in excess of the estimated Net Cash Proceeds annual amount being subject to be received by Borrower or such Subsidiary in respect thereof) andprepayment), promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Proceeds of all such disposition; provided, however, that Net Cash Proceeds; provided Proceeds that are reinvested (or committed in writing to be reinvested) in (x) replacement assets (including acquisitions of other entities, but excluding Real Estate constituting vineyards) useful in the business of any Obligor within 180 days (and if so long as no Default or Event of Default then existscommitted in writing to reinvestment within such 180-day period, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documentsreinvested within 90 days), and (y) this subsection replacement assets comprised of Real Estate constituting vineyards useful in the business of any Obligor within 365 days (and if so committed in writing to reinvestment within such 365-day period, reinvested within 90 days), shall not require in each case be excluded; provided, however, that in each case, until the same has been reinvested or the reinvestment period has expired, such Net Proceeds shall be deposited to a restricted deposit account maintained by the Borrowers that is subject to the Agent’s first priority lien (other than Permitted Liens in favor of the depository bank maintaining such account).
5.4.3 Notwithstanding anything to the contrary in Section 5.4.2, within five (5) Business Days of receipt of the Net Proceeds of any sale or other disposition of Real Estate pursuant to clause (n) of the definition of “Permitted Asset Disposition”, Borrowers shall, repay the outstanding balance of the Term Loans in an amount equal to 75% of the original appraised “as-is” fair market value (which was used to determine the Term Loan Formula Amount) of such prepayment with respect Real Estate, less any scheduled amortization payments already made, and any excess Net Proceeds of such Permitted Asset Disposition shall be applied to Net Cash Proceeds received prepay the then-outstanding principal balance of Revolver Loans pro rata (without a permanent reduction of the Revolver Commitments);
5.4.4 During the continuance of any Trigger Period, the amounts on account deposit in the Concentration Account shall be applied by the Agent to prepay the then-outstanding principal balance of Dispositions during Revolver Loans pro rata (without a permanent reduction of the Revolver Commitments).
5.4.5 Within five (5) Business Days of the receipt of any fiscal year Extraordinary Receipts in excess of Borrower not exceeding $250,000 100,000 in the aggregate so long as no Default or Event of Default then existsin any Fiscal Year, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of such proceeds, net of fees, costs and expenses incurred in collecting such Extraordinary Receipts and taxes paid or payable as a result thereof or as a result of the distribution of such Extraordinary Receipts to such Person;
5.4.6 Without limiting the obligation of Borrowers to obtain the consent of the Required Lenders pursuant to Section 10.2.1 to the incurrence of any Debt not otherwise permitted hereunder, concurrently with any incurrence of any Debt by a Borrower (other than Debt permitted under this Agreement), Borrowers shall prepay the Obligations in an amount equal to 100% of the Net Proceeds of such Debt;
5.4.7 Notwithstanding anything herein to the contrary, if an Overadvance exists, Borrowers shall, promptly, following Agent’s notice of such occurrence, but in no event later than one (1) Business Day, repay the outstanding Revolver Loans in an amount sufficient to reduce the principal balance of Revolver Loans to the Borrowing Base;
5.4.8 Notwithstanding anything herein to the contrary, on the Term Loan Maturity Date, the Equipment Loan Maturity Date, the Capital Expenditure Loan Maturity Date or the DDTL Maturity Date (as applicable), Borrowers shall pay the Term Loan, the Equipment Loan, the Capital Expenditure Loans and the DDTLs (as applicable, and unless sooner repaid hereunder); and
5.4.9 Other than with respect to mandatory prepayments pursuant to Sections 5.4.3, 5.4.4, 5.4.7 and 5.4.8, notwithstanding anything else to the contrary contained herein:
(a) the amount of such Net Cash Proceeds. Each such prepayment all mandatory prepayments made hereunder, shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.follows:
(iiii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed MoneyFIRST, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid then-outstanding principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Revolver Loans (with without a concurrent permanent reduction of the Revolving CommitmentRevolver Commitments), the Term Loan, the Capital Expenditure Loans, the Equipment Loan and the DDTLs, pro rata; provided provided, that to the proceeds from extent the divestiture of outstanding Term Loan, Capital Expenditure Loans, Equipment Loan and DDTLs include Adjusted Base Rate Loans and SOFR Loans, the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ mandatory prepayments shall be permitted to first be applied to the Revolving Adjusted Base Rate Loans outstanding. Each prepayment of Loans under this Section 2.8(b) and remaining balance shall be made by held as cash collateral in Cash Collateral Account until the payment end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans;
(ii) SECOND, to Cash Collateralize outstanding Letters of Credit, and
(iii) LAST, to all remaining Obligations.
(b) Notwithstanding the foregoing, any mandatory prepayments made hereunder related solely to the Primary Revolver Loan/Letter of Credit Collateral (including without limitation any casualty or condemnation related thereto), shall be applied as follows:
(i) FIRST, to the then-outstanding principal amount balance of Revolver Loans (with a permanent reduction of the Revolver Commitments), pro rata, provided, that to the extent the outstanding Revolver Loans include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be prepaid applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans,
(ii) SECOND, to Cash Collateralize outstanding Letters of Credit,
(iii) THIRD, to the then-outstanding principal balance of Term Loan, the Capital Expenditure Loans, the Equipment Loan and the DDTLs, pro rata, provided, that to the extent the outstanding Term Loan, Capital Expenditure Loans, Equipment Loan and DDTLs include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans; and
(iv) LAST, to all remaining Obligations.
(c) Notwithstanding the foregoing, any mandatory prepayments made hereunder related solely to Primary Term Loan Collateral (including without limitation any casualty or condemnation related thereto), shall be applied as follows:
(i) FIRST, to the then-outstanding principal balance of the Term Loan, pro rata in inverse order of maturity, provided, that to the case extent the outstanding Term Loan includes Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans,
(ii) SECOND, to Cash Collateralize outstanding Letters of Credit,
(iii) THIRD, to the then-outstanding principal balance of Revolver Loans (with a permanent reduction of the Revolver Commitments), the Equipment Loan, the Capital Expenditure Loans and DDTLs, pro rata, provided, that to the extent the outstanding Revolver Loans, Equipment Loan, Capital Expenditure Loans and DDTLs include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans, and
(iv) LAST, to all remaining Obligations.
(d) Notwithstanding the foregoing, any mandatory prepayments made hereunder related solely to Primary Equipment Loan/Capital Expenditure Loan Collateral (including without limitation any casualty or condemnation related thereto), shall be applied as follows:
(i) FIRST, to the then-outstanding principal balance of the Equipment Loan and the Capital Expenditure Loans, pro rata in inverse order of maturity, provided, that to the extent the outstanding Equipment Loan and Capital Expenditure Loans include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans,
(ii) SECOND, to Cash Collateralize outstanding Letters of Credit,
(iii) THIRD, to the then-outstanding principal balance of Revolver Loans (with a permanent reduction of the Revolver Commitments), Term Loans, accrued interest thereon and DDTLs, pro rata, provided, that to the date extent the outstanding Revolver Loans, Term Loans, and DDTLs include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of prepayment together the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans, and
(iv) LAST, to all remaining Obligations.
(e) Notwithstanding the foregoing, any mandatory prepayments made hereunder related solely to Primary DDTL Collateral (including without limitation any casualty or condemnation related thereto), shall be applied as follows:
(i) FIRST, to the then-outstanding principal balance of DDTLs in inverse order of maturity, provided, that to the extent the outstanding DDTLs include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans,
(ii) SECOND, to Cash Collateralize outstanding Letters of Credit,
(iii) THIRD, to the then-outstanding principal balance of Revolver Loans (with any amounts due Bank under Section 3.3a permanent reduction of the Revolver Commitments), the Term Loan, the Equipment Loan, and the Capital Expenditure Loans, pro rata, provided, that to the extent the outstanding Revolver Loans, Term Loan, Equipment Loan or Capital Expenditure Loans include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans, and
(iv) LAST, to all remaining Obligations.
Appears in 1 contract
Sources: Loan and Security Agreement (Vintage Wine Estates, Inc.)
Mandatory Prepayments. (ia) If Indebtedness is incurred by Holdings, the US Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Propertyits Restricted Subsidiaries (other than Indebtedness permitted under Section 6.2), then Borrower shall promptly notify Bank on the date of such proposed Disposition issuance or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andincurrence, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Cash Proceeds thereof shall be applied to the prepayment of all the Term Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(e). The provisions of this Section 2.14 do not constitute a consent to the incurrence of any Indebtedness by Holdings, the US Borrower or any of its Restricted Subsidiaries.
(b) If on any date Holdings, the US Borrower or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, no later than five (5) Business Days after the date of receipt by Holdings, the US Borrower or any of its Restricted Subsidiaries of such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate 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); 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 US Borrower is required to, or required to offer to, repurchase or redeem or repay or prepay Permitted Term Loan Refinancing Indebtedness that is secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with proceeds of such Asset Sale or Recovery Event (such Permitted Term Loan Refinancing Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the US Borrower may apply such Net Cash Proceeds 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, 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 (5) 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, the US Borrower may elect to reduce the amount of such prepayment by the amount of any Restricted Asset Sale Proceeds included in such Net Cash Proceeds; provided, that the US Borrower shall use its commercially reasonable efforts to repatriate any amounts constituting Restricted Asset Sale Proceeds pursuant to clause (a) of the definition thereof as promptly as practicable following the date of such prepayment. To the extent the US Borrower does not repatriate any such Restricted Asset Sale Proceeds, the US Borrower shall, to the extent applicable, prepay Term Loans and/or cause Indebtedness of the Foreign Subsidiary that generated the Restricted Asset Sale Proceeds to be permanently prepaid in an aggregate amount equal to the corresponding Restricted Asset Sale Payment Amount on or prior to the first anniversary of the original prepayment date for the related Foreign Asset Sale.
(c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the US Borrower shall apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow minus (ii) the Optional Prepayment Amount (if any) for such Excess Cash Flow Period to the prepayment of the Term Loans (together with accrued interest thereon), as set forth in Section 2.14(e). Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms date on which the financial statements of the Loan Documents.
(iii) If after US Borrower referred to in Section 5.1(a), for the Closing Date fiscal year with respect to which such prepayment is to be made, are required to be delivered to the Lenders. Notwithstanding the foregoing, the US Borrower or any Subsidiary shall issue any Indebtedness may elect to reduce the amount of such prepayment by an amount equal to the ECF Percentage of Restricted ECF, if any, for Borrowed Moneysuch Excess Cash Flow; provided, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, that the US Borrower shall promptly notify Bank use its commercially reasonable efforts to repatriate such applicable percentage of amounts constituting Restricted ECF pursuant to clause (b) of the estimated Net definition thereof as promptly as practicable following the Excess Cash Proceeds of Flow Application Date (and upon any such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancerepatriation, Borrower shall prepay the Obligations Term Loans by the amount thereof in accordance with this Section 2.14(c)). To the extent the US Borrower does not repatriate the applicable percentage of Restricted ECF, the US Borrower shall, to the extent applicable, prepay Term Loans and/or cause Indebtedness of the applicable Foreign Subsidiary to be permanently prepaid in an aggregate amount equal to 100% the corresponding Restricted ECF Payment Amount for the applicable Excess Cash Flow Period on or prior to the first anniversary of the amount date that the original payment was required to have been made pursuant to the terms of this Section 2.14(c).
(d) The US Borrower shall apply, on a dollar-for-dollar basis, all of the Net Cash Proceeds of any Replacement Term Loans and the Net Cash Proceeds of any Permitted Term Loan Refinancing Indebtedness (that is incurred to refinance Term Loans) to the repayment of Term Loans to be repaid from such Net Cash ProceedsProceeds on the date such Net Cash Proceeds are received. Each 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 Eurocurrency Loans of such Class; provided, however, that if any Lenders exercise the right to waive a given mandatory prepayment of any Class of Term Loans pursuant to Section 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 Eurocurrency Loans; provided, further, that the US Borrower may elect (except in the case of a prepayment pursuant to Section 2.14(d)) that the remainder of such prepayments not applied to prepay ABR Loans be deposited in a collateral account pledged to the Administrative Agent to secure the Obligations and applied thereafter to prepay the Eurocurrency Loans on the last day of the next expiring Interest Period for Eurocurrency Loans; provided that (A) interest shall continue to accrue thereon at the rate otherwise applicable under this Agreement to the Eurocurrency Loan in respect of which such deposit was made, until such amounts are applied to prepay such Eurocurrency Loan, and (B) (x) at any time while a Specified Default has occurred and is continuing, the Administrative Agent may, and (y) at any time while a Default or Event of Default has occurred and is continuing, upon written direction from the Required Lenders, the Administrative Agent shall, apply any or all of such amounts to such Obligations as agreed the payment of Eurocurrency Loans. Notwithstanding anything to by Borrower and Bank. Borrower acknowledges the contrary herein, if at any time a mandatory prepayment of Term Loans is required to be made pursuant to this Section 2.14 there are no Term Loans outstanding, the mandatory prepayment amounts shall be applied to prepay outstanding Revolving Credit Borrowings; provided that its performance hereunder shall not limit the rights and remedies no corresponding permanent reduction of Bank for any breach of Section 7.1 or any other terms of the Loan DocumentsRevolving Credit Commitments will be required.
(ivf) Notwithstanding anything in this Section 2.14 to the contrary, any Term Loan Lender (and, to the extent provided in the applicable Permitted Amendment, any other Term Loan Lender) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery or facsimile) at least one (1) Business Day prior to the required prepayment date, to decline all of any mandatory prepayment of its Term Loans pursuant to this Section 2.14, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined may be retained by the US Borrower.
(g) If for any reason, (i) the Total US Tranche Revolving Credit Exposure exceeds the sum of the total US Tranche Revolving Credit Commitments then in effect (including after giving effect to any reduction in the Closing Date Borrower or any Subsidiary shall issue any Subordinated DebtUS Tranche Revolving Credit Commitments pursuant to Section 2.10), the US Borrower shall promptly notify Bank immediately prepay US Tranche Revolving Credit Loans and/or cash collateralize the US Tranche Letters of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary Credit (in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations accordance with Section 2.7(j)) in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 excess or any other terms of the Loan Documents.
(vii) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Total Canadian Tranche Revolving Credit Commitment has been so reduced.
(vi) If at any time Exposure exceeds the sum of the unpaid principal balance of total Canadian Tranche Revolving Credit Commitments then in effect (including after giving effect to any reduction in the Canadian Tranche Revolving Loans and Credit Commitments pursuant to Section 2.10), the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, applicable Borrower shall immediately and without notice or demand pay over prepay Canadian Tranche Revolving Credit Loans and/or cash collateralize the Canadian Tranche Letters of Credit (in accordance with Section 2.7(j)) in an aggregate amount of the excess equal to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligationsexcess.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Continental Building Products, Inc.)
Mandatory Prepayments. (i) If Borrower Indebtedness shall be issued or incurred by any Subsidiary shall at Group Member (excluding any time or from time Indebtedness incurred in accordance with Section 7.2 (other than Permitted Additional Subordinated Debt, to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss the extent that (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereofx) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition Permitted Additional Subordinated Debt are not used to fund (within 90 days of the incurrence thereof) one or Event more Permitted Acquisitions or other Investments under Section 7.8(u), (w), (x), (dd) or (ee) and/or the fees and expenses payable in connection therewith; provided that during any period between the incurrence of Losssuch Permitted Additional Subordinated Debt and application of such Net Cash Proceeds contemplated by this clause (x) to such Investment(s), Borrower such Net Cash Proceeds shall prepay the Obligations be deposited by such Group Member in an aggregate account (A) over which the Collateral Agent has “control” (within the meaning of the UCC) over and an exclusive Lien (other than Liens under Section 7.3(a)) on such Net Cash Proceeds or (B) over which the representative for such Permitted Additional Subordinated Debt has “control” (within the meaning of the UCC) and an exclusive Lien (other than Liens under Section 7.3(a)) on such Net Cash Proceeds pursuant to a control agreement in form and substance reasonably satisfactory to the Administrative Agent or the holders of such Permitted Additional Subordinated Debt, as the case may be; provided that, in the case such Lien is granted to the representative for the holders of such Permitted Additional Subordinated Debt, the terms of such Permitted Additional Subordinated Debt shall require that such Permitted Additional Subordinated Debt be redeemed in full if such Permitted Acquisition(s) or Investments intended to be funded therewith are not so funded within such 90 day period or (y) such Permitted Additional Subordinated Debt does not represent Permitted Refinancing Indebtedness in respect of Indebtedness previously incurred pursuant to Section 7.2(m)) an amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as thereof shall be applied not later than five Business Days after the date such Group Member receives such Net Cash Proceeds are applied to replace or restore toward the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Tranche B Term Loans until paid as set forth in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertySection 2.11(e).
(ii) If after the Closing Date Borrower or Capital Stock shall be issued by any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)Group Member in a publicly registered offering, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank an amount equal to 50% of the estimated Net Cash Proceeds thereof (less any amounts of such issuance Net Cash Proceeds required to prepay Senior Subordinated Loans under the documentation governing such Senior Subordinated Loans) shall be received by applied no later than five Business Days after the date such Group Member receives such Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(e).
(iii) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or for the account of Borrower or such Subsidiary Recovery Event, then, unless a Reinvestment Notice shall be delivered in respect thereof. Promptly upon receipt by Borrower or , such Subsidiary Net Cash Proceeds shall be applied no later than five Business Days (or, in the case of Net Cash Proceeds from a Recovery Event, 15 Business Days) after the date of such issuancereceipt thereof toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(e); provided that, Borrower shall prepay notwithstanding the Obligations in foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to 100% the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(e).
(iv) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow less (ii) the sum of (x) the aggregate principal amount of all prepayments of Revolving Loans and Swingline Loans (other than prepayments of Swingline Loans and Revolving Loans made pursuant to Section 2.11(f)) made during such Net Excess Cash ProceedsFlow Period (to the extent such prepayments were accompanied with corresponding optional reductions of the Revolving Commitments) and (y) the aggregate principal amount of all optional prepayments of Tranche B Term Loans made during such Excess Cash Flow Period, toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(e), in each case, other than prepayments funded with the proceeds of Indebtedness (other than Revolving Loans or Swingline Loans). Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms date on which the financial statements of the Loan Documents.
Borrower referred to in Section 6.1(a) for the Excess Cash Flow Period with respect to which such prepayment is made (iii) If after or, in the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank case of the estimated Net Excess Cash Proceeds of such issuance Flow Period ending December 31, 2008, the financial statements for the year ended December 31, 2008), are required to be received by or for delivered to the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan DocumentsLenders.
(v) Borrower shallThe application of any prepayment of Tranche B Term Loans pursuant to this Section 2.11 shall be made, first, to ABR Loans and, second, to Eurodollar Loans; provided that, if such application would be inconsistent with Section 2.17(b), then Section 2.17(b) shall govern such application. Each prepayment of Tranche B Term Loans under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on each date the Revolving Credit Commitment is reduced amount prepaid and by any amounts payable pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced2.20.
(vi) If at any time there shall be an Excess, the sum of Borrower shall on the unpaid Non-Extended Revolving Termination Date first, prepay Swingline Loans in a principal balance of amount equal to the Revolving Loans and the Swingline Prepayment Amount, second, Cash Collateralize L/C Obligations then outstanding shall be Exposure in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the an amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied equal to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the Non-Extended Termination Date L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Cash Collateralization Amount and third, prepay Extended Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the an amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied equal to the Non-Extended Termination Date Revolving Loans until paid in full or the Euro Sublimit is no longer exceededLoan Prepayment Amount.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Amendment Agreement (Radiation Therapy Services Holdings, Inc.)
Mandatory Prepayments. (i) If Borrower any Indebtedness shall be incurred by the Company or any Subsidiary shall at of its Subsidiaries (excluding any time or from time to time make or agree to make a Disposition or shall suffer Indebtedness incurred in accordance with Section 7.01), an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to shall be applied within five Business Days of the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect receipt of such Net Cash Proceeds to toward the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after prepayment of the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid as set forth in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertySection 2.13(c)(iii).
(ii) If after the Closing Date Borrower Company or any Subsidiary of its Subsidiaries shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof within five Business Days of the receipt of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceProceeds, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment Proceeds shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit within ten Business Day following receipt thereof toward the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms prepayment of the Loan Documents.
(iii) If after Term Loans; provided, that, notwithstanding the Closing Date Borrower or any Subsidiary foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank be applied toward the prepayment of the estimated Term Loans. For the avoidance of doubt, the parties hereto acknowledge and agree that the Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture Company’s sale of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇May Confections Brands, Inc. (including its subsidiaries, ▇▇▇▇▇▇▇ May Confections, ▇▇▇▇Inc. and ▇▇▇▇▇ ▇▇▇▇▇ London Candies, Inc.), which would otherwise have been required to be applied to make a prepayment of the Existing Term Loans under the Existing Credit Agreement unless reinvested as provided therein, shall not be required to be applied to prepay the Term Loans and such Net Cash Proceeds shall be permitted deemed to first have been reinvested in accordance with the provisions hereof.
(iii) Amounts to be applied in connection with prepayments shall be applied to the Revolving prepayment of the Term Loans outstandingin accordance with Section 2.20. The application of any prepayment pursuant to this Section 2.13(c) shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.8(b2.13(c) shall be made accompanied by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of such prepayment together on the amount prepaid. Each prepayment of the Term Loans in accordance with any amounts due Bank under this Section 3.32.13(c) shall be applied to installments thereof in the inverse order of maturity.
Appears in 1 contract
Mandatory Prepayments. (ia) If Immediately upon receipt by the Borrower or any Subsidiary shall at of its Restricted Subsidiaries of any time Net Proceeds of any sale or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including disposition by the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andany of its Restricted Subsidiaries of any of its assets, promptly upon receipt by Borrower or such Subsidiary of any Net Proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make prepay the Obligations with respect to Net Proceeds from the sales of assets in the ordinary course of business, from sales of assets or from any casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in assets then used or usable in the business of the Borrower and its Restricted Subsidiaries (other than in current assets) within 12 months following receipt thereof; provided that if any Net Proceeds are not so reinvested by the deadline specified above or if any such Net Proceeds are no longer intended to be or cannot be so reinvested, any such Net Proceeds shall be applied, in accordance with DB1/ 110470318.9 63 Section 2.12(d), to the prepayment of the Term Loans as set forth in this Section 2.12. If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a mandatory prepayment under this subsection in respect Lien on the Collateral ranking pari passu with the Lien securing the Term Loans (such Indebtedness, “Other Pari Indebtedness”) pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds from such disposition, casualty insurance policy or eminent domain, condemnation or similar proceeding, then the Borrower, at its election, may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the applicable Class(es) of Term Loans and Other Pari Indebtedness at such time) to the outstanding Classes of Term Loans and such Other Pari Indebtedness; provided, that the portion of such Net Cash Proceeds allocated to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower Other Pari Indebtedness shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in exceed the amount of such Net Cash Proceeds not so reinvested. The required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the applicable Class(es) of Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of each such prepayment of the Loans that would have otherwise been required pursuant to this Section 2.12(a) shall be applied first reduced accordingly; provided, that to the outstanding Term Loans until paid extent the holders of Other Pari Indebtedness decline to have such indebtedness repurchase or prepaid, the declined amount shall promptly (and in full and then to any event within ten (10) Business Days after the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first date of such rejection) be applied to prepay the Revolving Loans. If Bank so requestsapplicable Class(es) of Term Loans in accordance with the terms hereof, all proceeds (b) No later than the Business Day following the date of such Disposition receipt by the Borrower or Event any of Loss shall be deposited with Bank its Restricted Subsidiaries of any Net Proceeds from any issuance of Indebtedness by the Borrower or any of its Restricted Subsidiaries, (or its agenti) and held by it in the Collateral Account that is not permitted to be disbursed issued or incurred pursuant to Section 7.1 or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance that is intended to be received by or for the account of Borrower or such Subsidiary constitute Credit Agreement Refinancing Indebtedness in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds any Class of such issuanceTerm Loans, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds. Each Any such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies accordance with subsection (d) of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsthis Section.
(iiic) If No later than five (5) Business Days after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness date on which the Borrower’s annual audited financial statements for Borrowed Moneysuch Fiscal Year are required to be delivered pursuant to Section 5.1(a) (beginning with the Fiscal Year ending December 31, other than Indebtedness for Borrowed Money expressly permitted by Section 7.12021), Borrower shall promptly notify Bank (i) to the extent that the Total Net Leverage Ratio as of the estimated Net Cash Proceeds last day of such issuance to be received by or for Fiscal Year is greater than 2.50:1.00, the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 10050% of Excess Cash Flow for such Fiscal Year, (ii) to the amount extent that the Total Net Leverage Ratio as of the last day of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and Fiscal Year is less than or equal to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit 2.50:1.00 but greater than 2.00:1.00, the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 10025% of Excess Cash Flow for such Fiscal Year and (iii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.00:1.00, no prepayment shall be required; provided that such amount shall be reduced on a dollar-for-dollar basis for such Fiscal Year by the aggregate amount of voluntary prepayments of Term Loans (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount pursuant to Section 2.8, Revolving Loans) that rank pari passu in right of payment and security with the Term Loans made pursuant to Section 2.11, in each case, to the extent made with Internally Generated Cash during such fiscal year or after such Fiscal Year and prior to the time such prepayment is due (without duplication to subsequent years). If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Pari Indebtedness, then the Borrower, at its election, may apply Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Pari Indebtedness at such time) provided that the portion of such Excess Cash Flow allocated to the Other Pari Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the applicable Class(es) of Term Loans in accordance with the terms hereof) to the prepayment of such Class(es) of Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the applicable Class(es) of Term Loans that would have
(d) Any prepayments made by the Borrower pursuant to subsections (a), (b) or (c) of this Section shall be applied as follows: first, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans in direct order of maturity; second, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments (with no permanent reduction in the Revolving Commitments); and third, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) and (c) of this Section 2.12 prior to 1:00 p.m. at least five (5) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such Net Cash Proceedsprepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such ▇▇▇▇▇▇’s Pro Rata Share of the prepayment with respect to any Class of Term Loans. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (a) or (c) of this Section 2.12 by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be applied in such amounts and to such Obligations as agreed to retained by the Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents(“Retained Declined Proceeds”).
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vie) If at any time the sum aggregate Revolving Credit Exposure of all Lenders exceeds the unpaid principal balance of Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay the Revolving Loans in an amount equal to such excess, together with all accrued and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment unpaid interest on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal excess amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.32.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayments. (i) If [Reserved]. 123
(i) No later than the fifth Business Day following the receipt of any Net Proceeds in respect of any Prepayment Asset Sale, the Borrower shall apply an amount equal to 37.5% of such Net Proceeds received with respect thereto (the “Required Prepayment Asset Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided, that, if, at the time that any such prepayment would be required hereunder, the Borrower or any Subsidiary shall at of its Restricted Subsidiaries is required to Prepay any time or from time to time make or agree to make other Indebtedness that is secured on a Disposition or shall suffer an Event of Loss pari passu basis with respect to any Propertythe Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then Borrower the relevant Person may apply the Required Prepayment Asset Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Required Prepayment Asset Subject Proceeds allocated to the Other Applicable Indebtedness shall promptly notify Bank of such proposed Disposition or Event of Loss (including not exceed the amount of the estimated Net Cash Required Prepayment Asset Subject Proceeds required to be received by Borrower or allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Required Prepayment Asset Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Subsidiary Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(i). Net Proceeds in respect thereofof any Prepayment Asset Sale that are not required to prepay the Term Loans in accordance with this Section 2.11(b)(i) and(such Net Proceeds, promptly upon “Remaining Prepayment Asset Proceeds”) shall be subject to Section 2.11(b)(ii) below.
(ii) No later than the fifth Business Day following the receipt by Borrower of Net Proceeds in respect of anyRemaining Prepayment Asset SaleProceeds or such Subsidiary Net Insurance/Condemnation Proceeds in excess of $15,000,000 in any Fiscal Year, the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectivelythe “Other Prepayment Subject Proceeds” and, together with the Required Prepayment Asset Subject Proceeds, the “Subject Proceeds”) to prepay the outstanding principal amount of all such Net Cash ProceedsTerm Loans then subject to prepayment requirements (the “the Subject Loans”) in accordance with clause (vi) below; provided that (xA) so long as no Default or Event of Default then exists, this subsection shall the Borrower does not require notify the Administrative Agent in writing prior to the date any such prepayment with respect is required to Net Cash be made that it does not intend to (I) reinvest 124 (including to make capital expenditures) the Other Prepayment Subject Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default business (other than Cash or Event Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvestany of its Restricted Subsidiaries, within 90 days of the applicable Dispositionthen, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection clause (ii) in respect of such Net Cash the Other Prepayment Subject Proceeds to the extent such Net Cash (x) the Other Prepayment Subject Proceeds are actually so reinvested in within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Other Prepayment Subject Proceeds during such similar assets with such 90 day period. Promptly 18 month period and the Other Prepayment Subject Proceeds are so reinvested within 180 days after the end expiration of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to 18 month period (it being understood that if the extent such Net Cash Other Prepayment Subject Proceeds have not been so reinvestedreinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Obligations in Subject Loans with the amount of such Net Cash Other Prepayment Subject Proceeds not so reinvested. The amount of each such prepayment shall be applied first reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Other Prepayment Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Other Prepayment Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Other Prepayment Subject Proceeds) or, (II) apply the Other Prepayment Subject Proceeds to prepay amounts outstanding Term Loans until paid under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in full and then to the Revolving Loans; provided that case of any such proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied a sale or other event with respect to the Revolving Loans. If Bank so requestsa Restricted Subsidiary that is not a Wholly Owned Subsidiary, all proceeds to pay Indebtedness of such Disposition or Event of Loss Subsidiary), then, the Borrower shall not be deposited with Bank (or its agent) and held by it in the Collateral Account required to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
make a mandatory prepayment under this clause (ii) If after in respect of the Closing Date Other Prepayment Subject Proceeds to the extent the Other Prepayment Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Other Prepayment Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Other Prepayment Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any Subsidiary shall issue new equity securities of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (whether common or preferred stock or otherwisesuch other Indebtedness, “Other Applicable Indebtedness”), other than equity securities issued in connection with then the exercise of employee stock options, Borrower shall promptly notify Bank relevant Person may apply the Other Prepayment Subject Proceeds on a pro rata basis to the prepayment of the estimated Net Cash Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Other Prepayment Subject Proceeds of such issuance allocated to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Other Applicable Indebtedness shall prepay the Obligations in an aggregate amount equal to 100% of not exceed the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Other Prepayment Subject Proceeds of such issuance required to be received by or for allocated to the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced Other Applicable Indebtedness pursuant to Section 2.13the terms thereof, prepay and the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the remaining amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding Other Prepayment Subject Proceeds shall be allocated to the amount to which Subject Loans in accordance with the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans terms hereof, and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess prepayment 125 of 126 the Subject Loans that would have otherwise been required pursuant to Bank as this Section 2.11(b)(ii) shall be reduced accordingly and for a mandatory prepayment on (2) to the extent the holders of the Other Applicable Indebtedness decline to have such ObligationsIndebtedness Prepaid, with each the declined amount shall promptly (and in any event within ten Business Days after the date of such prepayment first to rejection) be applied to prepay the Revolving Subject Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid extent required in full or accordance with the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments terms of Loans under this Section 2.8(b2.11(b)(ii). Notwithstanding the foregoing, (x) the Net Proceeds Percentage shall be applied first 50.0% if the Total Debt to Equity Ratio for the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon Test Period most recently ended prior to the date of such required prepayment together with any amounts due Bank under Section 3.3.is less than or equal to
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Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time Subject to time make or agree to make a Disposition or shall suffer an Event Section 2.13(g), not later than the tenth Business Day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower Holdings or such Subsidiary any of its Restricted Subsidiaries in respect thereofof (A) andone or more Asset Sales in an aggregate amount in excess of $2,500,000 per annum (other than any Disposition of any property or assets permitted by Section 6.05 (except Section 6.05(b)(xi) and (b)(xvii))) or (B) one or more Casualty Events in an aggregate amount in excess of $2,500,000 per annum, promptly upon receipt by the Lead Borrower or such Subsidiary of shall apply the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall received with respect thereto to prepay the Obligations outstanding Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceedsaccordance with Section 2.13(d); provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require if at the time any such prepayment would be required with respect to any Net Cash Proceeds received pursuant to this clause (a), the Lead Borrower is required to offer to repurchase the Permitted First Priority Refinancing Debt or any New Incremental Notes that are secured on account a pari passu basis with the Obligations (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of an Event of Loss so long as the documentation governing such Indebtedness with such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require respect of any such prepayment with respect Asset Sale or any such Casualty Event (such Indebtedness (or Permitted Refinancing thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Lead Borrower may apply such Net Cash Proceeds received on account a pro rata basis (determined on the basis of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days outstanding principal amount of the applicable DispositionTerm Loans and Other Applicable Indebtedness at such time); provided, further that the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect portion of such Net Cash Proceeds allocated to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower Other Applicable Indebtedness shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in exceed the amount of such Net Cash Proceeds not so reinvested. The required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash 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 prepayment of Other Applicable Indebtedness, and the amount of each such prepayment of the Term Loans that would have otherwise been required pursuant to this clause (a) shall be applied first reduced accordingly; provided, further, that to the outstanding Term Loans until paid extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in full and then to any event within ten (10) Business Days after the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first date of such rejection) be applied to prepay the Revolving LoansTerm Loans pursuant to this clause (a). If Bank so requestsNotwithstanding the foregoing, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary amount of Net Cash Proceeds from any Asset Sale or Casualty Event required to be (x) reinvested in assets (other than working capital assets) used or useful in the business of the Lead Borrower and its Restricted Subsidiaries or (y) applied to repay outstanding Loans, in each case as provided in this Section 2.13(a), shall be reduced on a dollar-for-dollar basis by the amount of any investment (not funded with Net Cash Proceeds from any other Asset Sale or Casualty Event that previously reduced a Loan Party’s or its Restricted Subsidiary’s obligation to repay Loans pursuant to this Section 2.13(a)) made by the Lead Borrower or any of its Restricted Subsidiaries in assets (other than working capital assets) used or useful in the business of the Lead Borrower and its Restricted Subsidiaries (including pursuant to a Permitted Acquisition (including a Permitted Acquisition of the equity interests in another Person)) within 90 days prior to the receipt of such issuanceNet Cash Proceeds.
(b) On each Excess Cash Flow Payment Date, the Lead Borrower shall prepay make mandatory principal prepayments of the Obligations Loans in the manner set forth in clause (d) below in an amount equal to the remainder (if positive) of (A) the Applicable Excess Cash Flow Percentage of Excess Cash Flow, if any, for such Excess Cash Flow Payment Period minus (B) the aggregate amount of voluntary prepayments of any Term Loan during such Excess Cash Flow Payment Period, in each case, solely to the extent that such prepayments were made in accordance with Section 2.12 and were not funded with the incurrence of any Funded Debt (other than revolving Funded Debt).
(c) In the event that any Loan Party or any Restricted 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 Restricted Subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01 (other than any Credit Agreement Refinancing Indebtedness)), the Lead Borrower shall, substantially simultaneously with (and in any event not later than the tenth 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(d).
(d) Mandatory prepayments of outstanding Loans under this Agreement shall be allocated (other than Net Cash Proceeds of any Credit Agreement Refinancing Indebtedness incurred pursuant to Section 2.25, which may, at the election of the Lead Borrower, be applied on a pro rata basis to any Class of outstanding Term Loans in respect of which such Indebtedness constitutes Credit Agreement Refinancing Indebtedness as directed by the Lead Borrower) by the Lead Borrower among each Class of outstanding Term Loans on a pro rata basis, with each Class to be allocated its Term Loan Percentage of the amount of the respective repayment and applied against the remaining scheduled installments of principal due in respect of the Term Loans to the outstanding principal amounts due under Sections 2.11(a)(i), (ii), (iii) and (iv) respectively as directed by the Lead Borrower (or in the absence of direction, in direct order of maturity), except to the extent the terms of any Incremental Term Loans, Other Term Loans, New Term Loans or Extended Term Loans provide for a less favorable treatment of any Incremental Term Loans, Other Term Loans, New Term Loans or Extended Term Loans with respect to any such mandatory prepayments.
(e) Notwithstanding any other provisions of this Section 2.13, to the extent that any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary (a “Foreign Disposition”) or the Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”), in each case giving rise to a prepayment event pursuant to Section 2.13(a), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.13(b) are or is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds. Each such prepayment shall Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.13 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Lead Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such amounts repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms repayment of the Loan Documents.
Loans pursuant to this Section 2.13 to the extent provided herein and (iiiB) If after to the Closing Date extent that the Lead Borrower has determined in good faith that repatriation of any of or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of all the estimated Net Cash Proceeds of any Foreign Disposition, any Foreign Casualty Event or Excess Cash Flow would have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such issuance repatriation) with respect to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary, provided that, in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.13 (or such issuanceExcess Cash Flow would have been so required if it were Net Cash Proceeds), (x) the applicable Borrower shall prepay the Obligations in applies an aggregate amount equal to 100% such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the applicable Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary.
(f) The applicable Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Lead Borrower setting forth in reasonable detail the calculation of the amount of such Net Cash Proceedsprepayment (the “Prepayment Amount”) and (ii) at least seven Business Days’ prior written notice of such prepayment. Each such notice of prepayment shall be applied in such amounts specify the prepayment date (the “Prepayment Date”), the Type and to such Obligations as agreed to by Borrower Class of each Term Loan being prepaid and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
each Term Loan (vior portion thereof) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepaid. All prepayments of Loans Borrowings under this Section 2.8(b) 2.13 shall be applied first subject to the Term Loan until paid in full Section 2.16 and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving CommitmentSection 2.05(b); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇if applicable, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ but shall otherwise be without premium or penalty, and shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made accompanied by the payment of accrued and unpaid interest on the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon repaid to but excluding the date of payment.
(g) Notwithstanding any other provisions of this Section 2.13, any Lender may (but solely to the extent the Lead Borrower elects for this clause (g) to be applicable to a given Prepayment Amount payable pursuant to Section 2.13(a)) decline to accept all (but not less than all) of its share of any such prepayment together with (any such Lender, a “Declining Lender”) by providing written notice to the Administrative Agent no later than five Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If any Lender does not give a notice to the Administrative Agent on or prior to such tenth Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. On any Prepayment Date, an amount equal to the Prepayment Amount minus the portion thereof allocable to Declining Lenders, in each case for such Prepayment Date, shall be paid to the Administrative Agent by the Borrowers and applied by the Administrative Agent ratably to prepay Term Loans owing to Lenders (other than Declining Lenders) in the manner described in Section 2.13(a) for such prepayment. Any amounts due Bank under Section 3.3that would otherwise have been applied to prepay Term Loans owing to Declining Lenders shall be retained by the Borrowers (such amounts, “Declined Amounts”).
Appears in 1 contract
Mandatory Prepayments. (i) If Borrower or any Subsidiary In the event and on such occasion that the aggregate Revolving Exposures exceed the aggregate Revolving Commitments, the applicable Borrowers shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank prepay Revolving Borrowings of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andClass or, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds if applicable, Swingline Loans of such Disposition or Event of LossClass (or, Borrower shall prepay if no such Borrowings are outstanding, deposit cash collateral in an account with the Obligations Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess; provided that if any such excess shall result from a change in the applicable exchange rates relating to Alternative Currencies, then such prepayment and/or cash collateralization shall only be required to be made by the applicable Borrowers upon one Business Day’s notice from the Administrative Agent.
(ii) Other than during a Covenant Suspension Period, (A) if the Parent Entity or any Restricted Subsidiary receives any Net Cash Proceeds from any Asset Sale or Casualty Event, the Borrower Agent shall apply an amount equal to 100% of such Net Cash Proceeds to prepay the amount Term Loans in accordance with Section 2.10(b)(v) on or prior to the date that is ten (10) Business Days after the date of all the realization or receipt of such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment shall be required pursuant to this Section 2.10(b)(ii)(A) with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace that the Parent Entity or restore the relevant Property any Restricted Subsidiary shall reinvest in accordance with Section 2.10(b)(ii)(B); provided that to the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in extent required by the aggregate so long as no Default or Event of Default then exists, and (z) in the case terms of any Disposition not covered Permitted Secured Notes that are secured by clause (y) aboveLiens subject to the First Lien Intercreditor Agreement, so long as no Default or Event the Borrower Agent may, in lieu of Default then exists, if Borrower states in its notice prepaying Term Loans with such portion of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar of any Asset Sale or Casualty Event, apply a portion of such Net Cash Proceeds (based on the respective principal amounts at such time of (A) such Permitted Secured Notes and (B) the Term Loans) to repurchase or redeem Permitted Secured Notes that are secured by Liens subject to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect First Lien Intercreditor Agreement with the remaining amount of such Net Cash Proceeds to the extent such be applied to prepay Term Loans; and (B) with respect to any Net Cash Proceeds are actually reinvested in such similar assets realized or received with such 90 day period. Promptly after respect to any Asset Sale or Casualty Event, at the end option of such 90 day periodthe Borrower Agent, Borrower shall notify Bank whether Borrower the Parent Entity or such any Restricted Subsidiary has reinvested may reinvest all or any portion of such Net Cash Proceeds in such similar assets, and, to assets useful for the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount Parent Entity’s or a Restricted Subsidiary’s business within (x) twelve (12) months following receipt of such Net Cash Proceeds or (y) if the Parent Entity or a Restricted Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, within six (6) months following the last day of such twelve month period; provided that any such Net Cash Proceeds that are not so reinvested. The amount of each such prepayment reinvested within the applicable time period set forth above shall be applied first to as set forth in Section 2.10(b)(ii)(A) within five (5) Business Days after the outstanding Term Loans until paid in full and then to end of the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyapplicable time period set forth above.
(iiiii) If after If, following the Closing Date Borrower Effective Date, the Parent Entity or any Restricted Subsidiary shall issue new equity securities incurs or issues (whether common x) any Refinancing Indebtedness or preferred stock (y) any Indebtedness not expressly permitted to be incurred or otherwiseissued pursuant to Section 6.01 (without prejudice to the restrictions therein), other than equity securities issued in connection with the exercise of employee stock options, Borrower Borrowers shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% of such Net Cash Proceeds received by the amount Parent Entity or any Restricted Subsidiary therefrom to the prepayment of the Term Loans in accordance with Section 2.10(b)(v) on or prior to the date which is three (3) Business Days after the receipt of such Net Cash Proceeds.
(iv) The Borrower Agent shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iii) of this Section 2.10(b) at least three (3) Business Days prior to the date of such prepayment. Each such prepayment notice shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit specify the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds date of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% prepayment and provide a reasonably detailed calculation of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsprepayment.
(v) Borrower shallEach prepayment of Term Loans pursuant to this Section 2.10(b) shall be applied pro rata to each Class of Term Loans (on a pro rata basis to the Term Loans of the Lenders with such Class of Term Loans), on each date except to the Revolving Credit Commitment extent that any Class of Term Loans is reduced entitled to receive a lesser amount, and shall be further applied to such Class of Term Loans in direct order of maturity to repayments thereof required pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced2.09(b).
(vi) If at any time the sum Any prepayment of the unpaid principal balance of the Revolving Term Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess pursuant to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b2.10(b) shall be applied first accompanied by accrued interest to the Term Loan until paid in full extent required by Section 2.12 and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted subject to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.32.15.
Appears in 1 contract
Mandatory Prepayments. (ia) If [Reserved].
(b) Subject to the payment of the amounts described in Section 2.7, if any Indebtedness shall be incurred by Borrower or any Subsidiary shall at thereof (excluding any time or from time to time make or agree to make a Disposition or shall suffer Indebtedness incurred in accordance with Section 7.2), an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or, if later, date of receipt toward the prepayment of the Loans and other amounts as set forth in Section 2.6(f).
(c) If on any date Borrower or any Subsidiary thereof shall receive Net Cash Proceeds from any Asset Sale (excluding an Asset Sale constituting the issuance of Capital Stock issued by Borrower) or Recovery Event, then, an amount equal to 100% of all the Net Cash Proceeds thereof shall be applied, within five (5) Business Days of receiving such proceeds, towards the prepayment of the Loans and other amounts as set forth in Section 2.6(f); provided that if the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Borrower intends to apply such Net Cash Proceeds; provided Proceeds from such event (or a portion thereof specified in such certificate), within one hundred eighty (180) days after receipt of such Net Cash Proceeds to acquire (or, in the case of a Recovery Event, replace or rebuild) assets (excluding cash or Cash Equivalents) to be used in the business of Borrower (it being understood and agreed that (x) so long as such proceeds may not be used to pay for or to offset any expenses, liabilities or any payroll obligations), and certifying that no Default or Event of Default has occurred and is continuing, then exists, no prepayment shall be required pursuant to this subsection shall not require any such prepayment clause (c) with respect to the amount Net Cash Proceeds received specified on account such certificate; provided further that (i) any such Net Cash Proceeds intended to be reinvested shall be held in a Deposit Account that is subject to a Control Agreement until such reinvestment is made and (ii) to the extent any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election, an Event of Loss so long as amount equal to any such non-reinvested Net Cash Proceeds shall be applied within five (5) Business Days after such determination that such Net Cash Proceeds are applied no longer intended to replace be or restore cannot be so reinvested to the relevant Property prepayment of the Loans as set forth in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (yc); provided, further, that a prepayment pursuant to this Section 2.6(c) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not only be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested exceeds $1,000,000 in such similar assets with such 90 day period. Promptly after the end of such 90 day perioda Fiscal Year, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, and only to the extent of such Net Cash Proceeds have not been so reinvestedexcess.
(d) [Reserved].
(e) [Reserved].
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 shall be applied to the Loans on a pro rata basis, in each case in accordance with Section 2.10(b). Each prepayment of the Loans under this Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent (and the Administrative Agent shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount notify each Lender)
(i) a written notice of each prepayment of the Loans in whole or in part pursuant to this Section 2.6 by noon New York City time, not less than (x) with respect to prepayments required by Section 2.6(a) and (c), five (5) Business Days (or such shorter period reasonably acceptable to the Administrative Agent) prior to the date such prepayment shall be applied first made or (y) with respect to prepayments required by Section 2.6(b), on the outstanding Term Loans until paid in full and then to date such prepayment shall be made (each, a “Prepayment Date”), which such notice shall set forth (x) the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in Prepayment Date, (y) the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds aggregate amount of such Disposition or Event of Loss shall be deposited with Bank prepayment and (or its agentz) the applicable clause under this Section 2.6 that such prepayment relates to, and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after a certificate signed by a Responsible Officer setting forth in reasonable detail the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% calculation of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsprepayment.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Navan, Inc.)
Mandatory Prepayments. (ia) If any Indebtedness (other than any Indebtedness permitted to be incurred in accordance with Section 7.2 or Section 7.14, but excluding any Refinancing Debt and any Refinancing Incremental Equivalent Debt (in each case, to the extent the proceeds thereof are applied in accordance with the respective definitions)) shall be incurred by Holdings, the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any PropertyRestricted Subsidiary, then the Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the pay an amount of the estimated Net Cash Proceeds equal to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary 100% of the Net Cash Proceeds of such Disposition or Event Indebtedness within one Business Day of Loss, Borrower shall prepay the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18.
(b) If any of the Borrower or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof (within three Business Days of such receipt), the Borrower shall pay an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds within three Business Days of the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18; provided that notwithstanding the foregoing, (xi) so long as no Default or Event of Default then existson each Reinvestment Prepayment Date, this subsection shall not require any such prepayment an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be paid to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18 and (ii) on the date (the “Trigger Date”) that is 180 days after any such Reinvestment Prepayment Date, an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date shall be paid to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18; provided further, that no prepayment pursuant to this Section 2.12(b) shall be required to the extent that the Net Cash Proceeds received on account by the Borrower and the Restricted Subsidiaries, taken as a whole, from any Asset Sales or Recovery Events (or series of related Asset Sales or Recovery Events) are less than (A) $5,000,000 per Asset Sale or Recovery Event (or series of related Asset Sales or Recovery Events) or (B) $10,000,000 in the aggregate in any twelve month period.
(c) Upon the consummation of an Event IPO, the Borrower shall prepay an aggregate principal amount of Loss so long as such Net Cash Proceeds are applied Term Loans equal to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to 50% of all Net Cash Proceeds received on account therefrom within one Business Day of Dispositions during any the date of receipt thereof by the Borrower, Holdings or the applicable Parent Holding Company, to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18.
(d) Commencing with respect to the fiscal year ending December 31, 2019, not later than thirty (30) days after the date on which the Borrower is required to deliver financial statements with respect to the end of such Excess Cash Flow Period under Section 6.1(a), if the Consolidated Total Leverage Ratio (as determined of the last day of such Excess Cash Flow Period) is greater than 4.50:1.00, the Borrower not exceeding $250,000 shall calculate Excess Cash Flow for the relevant Excess Cash Flow Period (the “Excess Cash Flow Calculation Date”) and the Borrower shall prepay the Term Loans, without premium or penalty (but subject to Section 2.21), in an amount equal to (i) the aggregate so long as no Default or Event ECF Required Percentage times the amount of Default then existssuch Excess Cash Flow, and minus (zii) in the each case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent not financed with the proceeds of the incurrence of Indebtedness having a maturity more than twelve months from the date of incurrence thereof and not previously deducted pursuant to this clause (ii) in any prior period, the amount of any voluntary prepayments during such Net Excess Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly Flow Period and, at the option of the Borrower, made after the end of such 90 day periodExcess Cash Flow Period and on or prior to the Excess Cash Flow Calculation Date, Borrower of (1) Term Loans (provided, that with respect to any prepayment of Term Loans below the par value thereof, the aggregate amount of such prepayment for purposes of this clause shall notify Bank whether Borrower be the amount of the Borrower’s cash payment in respect of such prepayment), (2) Revolving Loans or such Subsidiary has reinvested such Net Cash Proceeds Incremental Revolving Loans (in such similar assets, andeach case, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations commitments in respect thereof are permanently reduced by the amount of such Net Cash Proceeds not so reinvested. The amount of prepayments), (3) Refinancing Loans, Incremental Loans, Incremental Equivalent Debt and any other Indebtedness permitted under Section 7.1 that in each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held case is secured by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection on a pari passu basis with the exercise Obligations and (4) any Refinancing Indebtedness in respect of employee stock options, Borrower shall promptly notify Bank any of the estimated Net Cash Proceeds of such issuance to be received foregoing that is secured by or for the account of Borrower or such Subsidiary same collateral, and with the same priority, as the Indebtedness being refinanced, in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceeach case, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such permitted hereunder; provided, however, that no prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b2.12(d) shall be applied first required with respect to any Excess Cash Flow Period for which (y) the Term Loan until paid in full and then to the Revolving Loans Consolidated Total Leverage Ratio (with a concurrent permanent reduction as determined of the Revolving Commitment); provided that the proceeds from the divestiture last day of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall such Excess Cash Flow Period) is less than or equal to 4.50:1.00 or (z) such prepayment would be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3less than $5,000,000.
Appears in 1 contract
Mandatory Prepayments. (a) In the event that the Borrower or any of its Subsidiaries receives any Net Cash Proceeds (including into escrow) of any incurrence, issuance, offering or placement of Debt for borrowed money (including hybrid securities and debt securities convertible into equity) (other than (i) If Excluded Debt, (ii) commercial paper issued by the Borrower or any Subsidiary shall at of its Subsidiaries in the ordinary course of business, (iii) borrowings under the Existing Credit Agreement up to an aggregate principal amount not to exceed the aggregate commitments thereunder as in effect on the date hereof, (iv) intercompany indebtedness between the Borrower and its Subsidiaries and (v) the Loans) or any time issuance of equity securities or from time to time make equity-linked securities (other than Excluded Equity), in each case on or agree to make a Disposition or shall suffer an Event of Loss with respect to any Propertyafter the Effective Date, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds shall be applied, not later than three Domestic Business Days following the receipt by the Borrower or any such Subsidiary of such Net Cash Proceeds, to prepay the Loans (or, if prior to the extent Closing Date, permanently and automatically reduce the Commitments) as set forth in Section 2.09(c).
(b) In the event that the Borrower or any of its Subsidiaries receives any Net Cash Proceeds (including cash equivalents) in excess of $50,000,000 of any Prepayment Asset Sale (other than (i) any such Net Cash Proceeds (the “Reinvestment Amount”) that are actually reinvested in such similar other long-term assets with such 90 day period. Promptly after useful in the end business of such 90 day period, Borrower shall notify Bank whether the Borrower or such Subsidiary has reinvested such any of its Subsidiaries (or used to replace damaged or destroyed assets) and the Reinvestment Amount shall not constitute Net Cash Proceeds until and except to the extent (but shall then be deemed to have been received to such extent and shall constitute Net Cash Proceeds and not covered by the exception in such similar assetsthis clause (i)), andnot used within 180 days (or 270 days, to the extent committed (pursuant to a binding agreement) to be reinvested within such Net Cash Proceeds have not been so reinvested180-day period) following receipt, Borrower shall promptly prepay the Obligations (ii) sales or other dispositions of inventory in the amount ordinary course of business and (iii) sales or other dispositions publicly announced prior to September 20, 2018), then 100% of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to applied, not later than three Domestic Business Days following the outstanding Term Loans until paid in full and then to receipt by the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied , to prepay the Loans (or, if prior to the Closing Date, permanently and automatically reduce the Commitments) as set forth in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents2.09(c).
(iiic) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, The Borrower shall promptly (and not later than the second Domestic Business Day following receipt thereof) notify Bank the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary or, as applicable, any of Net Cash Proceeds of such issuanceits Subsidiaries, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash ProceedsProceeds referred to in clauses (a) and (b) above. Each such notice shall not be revocable by the Borrower, shall specify the prepayment or reduction date and the principal amount of the Loans or Commitments to be prepaid or reduced, as the case may be, and shall be applied in such amounts and to such Obligations as agreed to accompanied by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms a reasonably detailed calculation of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each Promptly after receiving a notice of prepayment or reduction pursuant to this Section 2.09, the Administrative Agent shall notify each Lender of the contents thereof and of such Lender’s ratable share (if any) of such prepayment or reduction. Each prepayment or reduction under this Section 2.09 shall be applied in such amounts and ratably to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding Commitments. Prepayments shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstandingaccompanied by accrued interest. Each prepayment of Loans under this Section 2.8(b) 2.09 shall not be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3reborrowed.
Appears in 1 contract
Mandatory Prepayments. (a) Within five Business Days of any Permitted Asset Disposition, Borrowers shall prepay Domestic Revolver Loans or UK Revolver Loans (according to the ownership of such assets), in an amount equal to the Net Proceeds of such disposition, and Borrowers shall permanently reduce the Domestic Revolver Commitments or UK Revolver Commitments, as applicable, in the amount of such Net Proceeds; provided, that (i) If Borrowers shall not be required to effect such permanent reduction in the Revolver Commitments unless the failure to effect such permanent reduction would create an obligation of any Borrower to make an offer to repurchase Existing Senior Notes, and (ii) such Net Proceeds shall not be required to be so applied on such date to the extent that such proceeds are used to acquire Property useful in the business of the Obligors within 180 days (or such longer period as Agent shall consent to in writing) of receipt of such Net Proceeds (or a binding commitment to acquire such Property is entered into within 180 days and such reinvestment is actually made within 360 days, or, in each case, such period as Agent shall consent to in writing), and to the extent the Net Proceeds exceed $500,000, Borrower Agent shall have delivered an officer’s certificate within five Business Days of such Permitted Asset Disposition stating such intent. Borrowers shall prepay Revolver Loans in the amount of any Subsidiary Net Proceeds not actually reinvested within such 180 or 360, as applicable, day period (or such period as consented to by Agent hereunder) and reduce the Domestic Revolver Commitments or the UK Revolver Commitments, as applicable, in an amount equal to such prepayment. Notwithstanding the foregoing, (i) Borrowers shall not be permitted to reinvest Net Proceeds resulting from any Permitted Asset Disposition described in clause (a) of the definition thereof (but shall not be required to effect any permanent reduction in the commitments in connection with any prepayment from the New Proceeds thereof), (ii) Borrowers shall prepay Revolver Loans with any Net Proceeds, and shall not be permitted to reinvest such Net Proceeds at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to when any Property, then Borrower shall promptly notify Bank of such proposed Disposition Default or Event of Loss Default exists, and (including the amount iii) any Property acquired with such Net Proceeds shall be free of Liens, other than Permitted Liens.
(b) Within five Business Days of the estimated receipt of any proceeds of insurance or condemnation awards paid in respect of any Equipment or Real Estate, Borrowers shall prepay Domestic Revolver Loans or UK Revolver Loans (according to the ownership of such Equipment or Real Estate), and Borrowers shall permanently reduce the Domestic Revolver Commitments or UK Revolver Commitments, as applicable; provided, that (i) Borrowers shall not be required to effect such permanent reduction in the Revolver Commitments unless the failure to effect such permanent reduction would create an obligation of any Borrower to make an offer to repurchase Existing Senior Notes and (ii) such Net Cash Proceeds shall not be required to be received by so applied on such date to the extent that Borrower Agent shall have delivered an officer’s certificate to Agent on or prior to such date stating that such proceeds shall actually be used to acquire Property useful in the business of the Obligors within 180 days (or such Subsidiary longer period as Agent shall consent to in respect thereofwriting) and, promptly upon of receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition Net Proceeds (or Event of Lossa binding commitment to acquire such Property is entered into within 180 days and such reinvestment is actually made within 360 days or, Borrower in each case, such period as Agent shall prepay the Obligations consent to in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; writing), provided further, that (xi) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account (ii) the replaced Property is free of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral DocumentsLiens, other than Permitted Liens; and (yiii) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice amount of such event that Borrower proceeds or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower awards from any single casualty or condemnation does not exceed $1,000,000. Borrowers shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations Revolver Loans in the amount of such any Net Cash Proceeds not so reinvested. The amount of each actually reinvested within such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests180 or 360, all proceeds of such Disposition or Event of Loss shall be deposited with Bank as applicable, day period (or its agentsuch period as consented to by Agent hereunder) and held by it reduce the Domestic Revolver Commitments or UK Revolver Commitments, as applicable, in the Collateral Account an amount equal to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyprepayment.
(iic) If after On the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)Commitment Termination Date, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving all Revolver Loans (with a concurrent permanent reduction of the Revolving Commitmentunless sooner repaid hereunder); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Mandatory Prepayments. (i) If Borrower [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $15,000,000 in any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any PropertyFiscal Year, then the Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of all such Net Cash ProceedsTerm Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (xA) so long as no Default or Event of Default then exists, this subsection shall the Borrower does not require notify the Administrative Agent in writing prior to the date any such prepayment with respect is required to Net Cash be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default business (other than Cash or Event Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvestany of its Restricted Subsidiaries, within 90 days of the applicable Dispositionthen, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection clause (ii) in respect of such Net Cash the Subject Proceeds to the extent such Net Cash (x) the Subject Proceeds are actually so reinvested in within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such similar assets with such 90 day period. Promptly 18 month period and the Subject Proceeds are so reinvested within 180 days after the end expiration of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to 18 month period (it being understood that if the extent such Net Cash Subject Proceeds have not been so reinvestedreinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Obligations in Subject Loans with the amount of such Net Cash Subject Proceeds not so reinvested. The reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing 70 the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of each Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)) and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be applied first allocated to the outstanding Term Subject Loans until paid in full accordance with the terms hereof, and then the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the Revolving Loans; provided that proceeds relating extent the holders of the Other Applicable Indebtedness decline to Eligible Inventory have such Indebtedness Prepaid, the declined amount shall promptly (and Eligible Receivables then included in any event within ten Business Days after the Borrowing Base shall first date of such rejection) be applied to prepay the Revolving LoansSubject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). If Bank so requestsNotwithstanding the foregoing, all proceeds (x) the Net Proceeds Percentage shall be 50.0% if the Senior Debt to Total Assets Ratio for the Test Period most recently ended prior to the date of such Disposition required prepayment is less than or Event equal to 70.0% and greater than 64.5% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of Loss 100.0%), (y) the Net Proceeds Percentage shall be deposited 25.0% if the Senior Debt to Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 64.5% and greater than 60.0% (with Bank (or its agentthe Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 50.0%) and held by it in (z) the Collateral Account Net Proceeds Percentage shall be 0.0% if the Senior Debt to be disbursed to or at Borrower’s direction for application to or reimbursement Total Assets Ratio for the costs Test Period most recently ended prior to the date of replacing, rebuilding such required prepayment is less than or restoring equal to 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such Propertyprepayment at a rate of 25.0%).
(iiiii) If after In the Closing Date event that the Borrower or any Subsidiary shall issue new equity securities of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (whether common other than Indebtedness that is permitted to be incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or preferred stock or otherwisea portion of any Class of Term Loans pursuant to Section 6.01(p), other than equity securities issued (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in connection accordance with the exercise requirements of employee stock optionsSection 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall shall, promptly notify Bank of upon (and in any event not later than two Business Days thereafter) the estimated Net Cash Proceeds receipt thereof of such issuance to be received Net Proceeds by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceits applicable Restricted Subsidiary, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of such Net Cash Proceeds. Each such prepayment shall be applied the relevant Class or Classes of Term Loans in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 accordance with clause (Maintenance of Subsidiariesvi) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsbelow.
(iv) If after Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, 71 for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any Subsidiary shall issue amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any Subordinated Debtwithholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall promptly notify Bank be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the estimated Net Cash Proceeds of such issuance relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancerelevant Subject Proceeds, Borrower shall prepay the Obligations in an aggregate amount equal to 100% the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and applicable Term Loans pursuant to such Obligations Section 2.11(b) as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.otherwise required above;
(v) Borrower shallAny Term Lender may elect, on each date by notice to the Revolving Credit Commitment is reduced pursuant Administrative Agent at or prior to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize time and in the L/C Obligations manner specified by the amountAdministrative Agent, if any, necessary prior to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Term Loans under this Section 2.8(b) shall required to be made by the payment Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the principal amount Term Loans pursuant to be prepaid andSection 6.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the case requirements of any Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans, accrued interest thereon to Loans in accordance with the date requirements of prepayment together with any amounts due Bank under Section 3.3.6.01
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Mandatory Prepayments. (ia) If In the event that any item of Eligible Inventory shall be sold or assigned by any Borrower or any Marine Subsidiary of such Borrower, or the ownership interests (whether Stock or otherwise) of any Borrower in any Marine Subsidiary of such Borrower owning record or beneficial title to any item of Eligible Inventory shall at any time be sold or from time to time make or agree to make a Disposition or transferred, then such Borrower shall suffer an Event of Loss immediately prepay the Loan made with respect to such Eligible Inventory so sold or assigned or with respect to the Eligible Inventory owned by such Marine Subsidiary so sold or transferred, together with any Propertyaccrued interest on such Loan to the date of prepayment and any amounts required pursuant to Section 2.18. The sale or assignment of Eligible Inventory by an Owner Trustee, then or the sale or assignment of any Borrower's or any Marine Subsidiary's beneficial interest in any owner trust (or nominee entity) holding title to Eligible Inventory, shall be considered a sale or assignment, as the case may be, of such Eligible Inventory by such Borrower or such Marine Subsidiary, as the case may be.
(b) In the event that any of the Eligible Inventory shall have sustained a Casualty Loss, the applicable Borrower shall promptly notify Bank Agent and Lenders of such proposed Disposition or Event Casualty Loss and make arrangements reasonably acceptable to the Agent to cause any and all cash proceeds received by such Borrower to be paid to Lenders as a prepayment hereunder. To the extent not so prepaid, the Loan funded with respect to such Eligible Inventory will nevertheless be paid by such Borrower as provided in Section 2.2.1. . Interest on the Loans shall be computed on the basis of Loss (including a 365/366-day year for all Prime Rate Loans and a 360-day year for all LIBOR Loans and the amount actual number of days elapsed in the period during which such interest accrues. In computing interest on any Loan, the date of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds making of such Disposition or Event Loan shall be included and the date of Losspayment shall be excluded. Each change in the interest rate of Prime Rate Loans based on changes in the Prime Rate and each change in the Adjusted LIBOR based on changes in the Eurodollar Reserve Percentage shall be effective on the effective date of such change and to the extent of such change. Agent shall give Borrowers notice of any such change in the Prime Rate; provided, Borrower however, that any failure by Agent to provide Borrowers with notice hereunder shall prepay not affect Agent's right to make changes in the Obligations interest rate of any Loan based on changes in an aggregate amount equal to 100% the Prime Rate. Upon the occurrence and during the continuation of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or any Event of Default then existsunder this Agreement, Advances under this subsection shall Agreement will, at the option of Requisite Lenders, bear interest at a rate per annum which is determined by adding two percent (2.00%) to the Applicable Margin for such Loan (the "Default Rate"). This may result in the compounding of interest. The imposition of a Default Rate will not require constitute a waiver of any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied Default. . All repayments or prepayments of principal and all payments of interest, fees, costs, expenses and other sums chargeable to replace Borrowers under this Agreement, the Notes or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment other Loan Documents shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank lawful money of the estimated Net Cash Proceeds United States of such issuance America in immediately available funds and delivered to be received by or Agent, for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceLenders, Borrower shall prepay not later than 1:00 p.m., North Carolina time, on the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify date due at First Union National Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceNorth Carolina, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated DebtOne First Union Center, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, or such other place as shall have been designated in writing by Agent. . Whenever any payment to be made under this Agreement, the Note or any of the other Loan Documents shall be permitted stated to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) due on a day which is not a Business Day, such payment shall be made by on the next succeeding Business Day and such extension of time shall in such case be included in the computation of the payment of interest thereon; provided, however, that no Loan shall have remained outstanding after the principal amount to be prepaid Maturity Date of such Loan.
(a) (i) and, in at the case direction of such Borrower or upon prior notice given to such Borrower by Agent, other then due and payable fees, expenses and costs; (b) then due and payable interest payments and mandatory prepayments; and (c) then due and payable principal payments and optional prepayments; provided that if an Event of Default shall have occurred and be continuing, Lenders shall have the exclusive right to apply any Term Loansand all such payments against the then due and owing Obligations of such Borrower as Lenders may deem advisable. To the extent any Borrower fails to make payment required hereunder or under any of the other Loan Documents, accrued each Lender is authorized to, and at its sole option may, make such payments on behalf of such Borrower. To the extent permitted by law, all amounts advanced by any Lender hereunder or under other provisions of the Loan Documents shall accrue interest thereon to at the date of prepayment together with any amounts due Bank under Section 3.3same rate as Loans hereunder.
Appears in 1 contract
Sources: Warehousing Credit Agreement (PLM Equipment Growth Fund V)
Mandatory Prepayments. (a) When any Loan Party sells or otherwise disposes of any Collateral other than Inventory in the ordinary course of business, Loan Parties shall repay the Advances in an amount equal to the net proceeds of such sale (i.e., gross proceeds less the reasonable costs of such sales or other dispositions), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied, (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree the outstanding Advances in such order as Agent may determine, subject to make a Disposition or shall suffer an Event of Loss with respect Borrowers' ability to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property reborrow Revolving Advances in accordance with the relevant terms hereof or (ii) to all other Obligations at Agents sole discretion. Notwithstanding the foregoing, unless and until an Event of Default has occurred and is continuing, Loan Parties may sell or otherwise dispose of Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding exceed $250,000 in the aggregate in any fiscal year and retain such net proceeds solely to acquire replacement Collateral without making a mandatory prepayment hereunder so long as no Default (a) the fair market value of the acquired Collateral is equal to or Event greater than the fair market value of Default then existsthe Collateral which was sold, and (zb) in the case of any Disposition not covered acquired Collateral is purchased by clause the applicable Loan Party within ninety (y90) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Dispositionsale of the Collateral, (c) the Net Cash Proceeds thereof acquired Collateral shall be deemed to be acceptable Collateral by Agent in assets similar to its Reasonable Discretion, (d) the assets which were acquired Collateral shall be subject to Agent's first priority security interest created hereunder and (e) until such Dispositiontime as the proceeds are used to acquire such replacement Collateral, then Borrower at the Agent's option, either (i) such proceeds shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay held by Agent as cash collateral for the Obligations pursuant to terms acceptable to Agent in its sole discretion or (ii) such proceeds shall be applied as a repayment of Revolving Advances and a reserve against loan availability under Section 2.1(a) in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment repayment shall be applied first to established. Such cash collateral or loan availability reserve, as the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requestscase may be, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held released by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued Agent only in connection with the exercise making of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance a Revolving Advance to be received used by or the Borrowers solely for the account purposes of Borrower funding the acquisition of replacement Collateral pursuant to the terms of this Section 2.15; provided, however, that nothing contained herein shall waive or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary modify any conditions to the making of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof Revolving Advances or any other terms provisions of this Agreement. If a Loan Party fails to meet the conditions set forth above, the Loan Parties hereby authorize Agent and Lenders to apply the proceeds held by Agent as a prepayment of the Loan DocumentsAdvances in the manner set forth above.
(iiib) If after Intentionally Left Blank
(c) Subject to the Closing Date Borrower or provisions of Section 4.11, the Agent shall apply the proceeds of any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be insurance settlements from casualty losses which are received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay Agent to the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied outstanding Advances in such amounts and order as Agent may determine, subject to such Obligations as agreed Borrowers' ability to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit reborrow Revolving Advances in accordance with the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentshereof.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Mandatory Prepayments. (a) No mandatory prepayment shall be required pursuant to this SECTION 3.03 except in connection with an Asset Disposition or series of related Asset Dispositions where the aggregate value of the assets subject to such Asset Disposition(s) exceeds $1,000,000 (based on the Asset Fair Market Values thereof); PROVIDED THAT, regardless of the value of the assets disposed of, no mandatory prepayment shall be required with respect to (i) If Borrower Asset Dispositions resulting from loss, damage, destruction, or taking where the proceeds thereof are utilized so as to be excluded from the definition of Net Proceeds, (ii) Asset Dispositions occurring as a part of any Subsidiary sale and leaseback transactions permitted pursuant to SECTION 8.07, (iii) the Tarboro Disposition, and (iv) Asset Dispositions in connection with off-balance sheet financings resulting in Deemed Debt hereunder. Whenever any Asset Disposition shall at any time have occurred in which such Asset Fair Market Values shall have equaled or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Propertyexceeded such amount, then Borrower within fifteen (15) Business Days after each date on which any Consolidated Company receives any Net Proceeds as a result of or in connection with an Asset Disposition by any Consolidated Company, the Term Loans shall promptly notify Bank be prepaid, or in the event that the Term Loans have been prepaid in full, the Total Commitments shall be reduced, on a pro rata basis by an amount equal to the Net Proceeds of such proposed Asset Disposition or Event of Loss (including PLUS interest accrued and unpaid on the amount of such prepayment; PROVIDED THAT, in the estimated Net Cash Proceeds event that the Borrower has invested or intends to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of reinvest the Net Cash Proceeds of such Asset Disposition or Event of Loss, Borrower shall prepay in other capital assets to be used in the Obligations in an aggregate amount equal to 100% business of the amount Borrower, the Borrower may deliver to the Administrative Agent a certificate of all a Financial Officer (a "Reinvestment Certificate") of the Borrower indicating either that Borrower has reinvested or that Borrower's intends to reinvest such Net Cash Proceeds; provided that Proceeds in capital assets to be used in Borrower's business within 180 days (x) so long or such longer period as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 may be allowed in the aggregate so long as no Default or Event definition of Default then exists, and (z) Net Proceeds in the case of any Disposition not covered by clause (y) abovecertain Asset Dispositions), so long as no Default or Event then the application of Default then exists, if Borrower states in its notice the Net Proceeds of such event that Borrower Asset Disposition to repay the Term Loans or reduce the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower Total Commitments hereunder shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day periodrequired. Promptly after At the end of such 90 180 day period, Borrower shall notify Bank whether Borrower period (or such Subsidiary has reinvested longer period as may be specified in the applicable Reinvestment Certificate in the circumstances described above), any portion of the Net Proceeds of such Net Cash Proceeds Asset Disposition in such similar assets, and, to the extent such Net Cash Proceeds excess of $100,000 which have not been so reinvestedused as set forth in the Reinvestment Certificate shall immediately be used to repay the Term Loans or, Borrower in the event that the Term Loans have been paid in full, to reduce the Total Commitments as provided herein.
(b) Notwithstanding the provisions of paragraph (a) of this SECTION 3.03, (i) no mandatory prepayment shall promptly prepay the Obligations in be required to be made under paragraph (a) if the amount of such payment is less than $100,000 in any instance, (ii) mandatory prepayments in aggregate amounts of less than $1,000,000 may be paid within fifteen (15) Business Days after the last day of the calendar month in which received rather than on the date received as provided above, and (iii) mandatory prepayment amounts otherwise required under said paragraph (a) shall be rounded to nearest multiple of $100,000 (such that, for example, if the portion of Net Cash Proceeds not so reinvested. The required to be prepaid pursuant to paragraph (a) is $250,000 or more, but less than $350,000, the mandatory prepayment amount of each under this SECTION 3.03 shall equal $300,000 PLUS interest accrued and unpaid on such prepayment amount).
(c) All mandatory prepayments hereunder shall be applied first pro rata to reduce the outstanding remaining installments on the Term Loans. Each mandatory prepayment of Term Loans until paid in full and then pursuant to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment this SECTION 3.03 shall be applied in such amounts and on a pro rata basis first to such Obligations as agreed Base Rate Advances outstanding under the Term Loans to by Borrower and Bankthe full extent thereof before application to Fixed Rate Advances outstanding thereunder. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms Mandatory reductions of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment Total Commitments shall be applied limited as set forth in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan DocumentsSECTION 2.10(b) hereof.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Dixie Group Inc)
Mandatory Prepayments. (i) If [Reserved].
(ii) From and after the Amendment No. 2 Effective Date and solely during a Secured Covenant Period, (x) if the Lead Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated resulting in Net Cash Proceeds to be received in excess of $15.0 million in a single transaction or in a series of related transactions or $25.0 million in the aggregate for all such Dispositions or Events of Loss during such fiscal year, then promptly and in any event within five (5) Business Days of receipt by the Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such the Restricted Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Lead Borrower shall prepay the Obligations Term Loans, in an aggregate amount equal to 100100.00% of the amount of all such Net Cash Proceeds in excess of the amount specified above and (y) promptly and in any event within five (5) Business Days of receipt by the Borrower or any Restricted Subsidiary of the Net Cash Proceeds in respect of any Disposition of the Great Oaks Property (including the Great Oaks Sale/Leaseback Transaction), the Lead Borrower shall prepay the Term Loans, in an aggregate amount equal to 50.00% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then existsthat, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of each Disposition (other than any Disposition not covered by clause (yof the Great Oaks Property) above, so long as no Default or and Event of Default then existsLoss, if Borrower states in its notice of such event that the Lead Borrower or the relevant applicable Restricted Subsidiary intends to invest or reinvest, as applicable, within 90 days twelve (12) months of the applicable DispositionDisposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets similar to used or useful in the assets which were subject to such Dispositionoperations of the Lead Borrower or its Subsidiaries, then the Lead Borrower shall not be required to make a mandatory prepayment under this subsection Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in within such similar assets with such 90 day period. Promptly after the end of such 90 day twelve-month period, Borrower shall notify Bank whether or the Lead Borrower or such a Restricted Subsidiary has reinvested committed to so invest or reinvest such Net Cash Proceeds in during such similar assetstwelve-month period and such Net Cash Proceeds are so reinvested within 180 days after the expiration of such twelve-month period; provided, andhowever, to the extent such that if any Net Cash Proceeds have not been so reinvestedinvested or reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Obligations Term Loans in the amount of such Net Cash Proceeds in excess of the amount specified above not so invested or reinvested; provided, further, that if, at the time that any such prepayment would be required hereunder, the Lead Borrower is required to prepay or offer to repurchase any other Indebtedness secured on a pari passu basis (or any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis) with the Obligations pursuant to the terms of the documentation governing such Indebtedness with such Net Cash Proceeds (such Indebtedness (or Refinancing Indebtedness in respect thereof) required to be prepaid or offered to be so repurchased, the “Other Applicable Indebtedness”), then the Lead Borrower may apply such Net Cash Proceeds on a pro rata basis to the prepayment of the Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.8(c)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly be applied to prepay the Term Loans in accordance with the terms hereof. The amount of each such prepayment shall be applied first to the outstanding Term Loans of each Class pro rata, until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsfull.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents[Reserved].
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents[Reserved].
(v) Borrower The Borrowers shall, on each date the Revolving Credit Commitment is Commitments are reduced pursuant to Section 2.132.10, prepay the Revolving Loans and, if necessarynecessary after such Revolving Loans have been repaid in full, Cash Collateralize replace or cause to be cancelled (or provide an L/C Backstop or make other arrangements reasonably satisfactory to the L/C Obligations Issuers) outstanding Letters of Credit by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has Commitments have been so reduced. Each prefunding of L/C Obligations that the Borrowers choose to make to the Administrative Agent as a result of the application of this clause (v) by the deposit of cash or Cash Equivalents with the Administrative Agent shall be made in accordance with Section 7.4.
(vi) If at Notwithstanding any time provision under this Section 2.8(c) to the sum contrary, (A) any amounts that would otherwise be required to be paid by the Lead Borrower pursuant to Section 2.8(c)(ii) above shall not be required to be so prepaid to the extent any such Disposition is consummated by a Foreign Subsidiary, such Net Cash Proceeds in respect of any Event of Loss are received by a Foreign Subsidiary or such Indebtedness is incurred by a Foreign Subsidiary, for so long as the repatriation to the United States of any such amounts would be prohibited under any Applicable Laws (including any such laws with respect to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the unpaid principal balance directors of the Revolving relevant Subsidiaries) and (B) if the Lead Borrower determines in good faith that the repatriating of any amounts required to mandatorily prepay the Loans and the L/C Obligations then outstanding shall be pursuant to Section 2.8(c)(ii) above would result in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over a tax liability that is material to the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first funds otherwise required to be applied repatriated (including any withholding tax) (such amount in clauses (A) and (B), a “Restricted Asset Sale Amount”), the amount the Lead Borrower shall be required to mandatorily prepay pursuant to Section 2.8(c)(ii) shall be reduced by the Revolving Loans Restricted Asset Sale Amount until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligationssuch time as it may repatriate such Restricted Asset Sale Amount without incurring such tax liability.
(vii) If at Notwithstanding the foregoing, each Term A-2 Lender shall have the right to reject its applicable Term A-2 Loan Percentage of any time the Dollar Equivalent mandatory prepayment of the sum of Term A-2 Loans pursuant to Section 2.8(c)(ii) above (each such Lender, a “Rejecting Lender”); provided that any amount rejected by a Rejecting Lender may be retained by the Borrower (the aggregate principal amount of such proceeds so rejected as of any date of determination, the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded“Declined Proceeds”).
(viii) Unless the applicable Borrower otherwise directs, prepayments of Revolving Loans under this Section 2.8(b2.8(c) shall be applied first to the Term Loan Borrowings of Base Rate Loans until paid payment in full and then to the Revolving Loans (thereof with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be any balance applied to Borrowings of Term Benchmark Loans in the Revolving Loans outstandingorder in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b2.8(c) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank the Lenders under Section 3.38.1. Except as otherwise provided in Section 2.8(c)(ii), mandatory prepayments of the Term Loans shall be applied to each Class of Term Loans on a pro rata basis and applied to the installments thereof as directed by the Lead Borrower, or if not so specified before the date of required payment, in the direct order of maturity other than with respect to that portion of any installment held by a Rejecting Lender.
Appears in 1 contract
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the Borrower, the aggregate so long as no Default cumulative amount of Net Asset Disposition Proceeds for such fiscal year exceeds $5,000,000, the Borrower shall, immediately after the completion of each sale or Event of Default then existsother disposition which results in such an excess or an increase in such an excess, and (z) prepay the Loans in an amount equal to the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days TGC Facility Share of the applicable DispositionNet Asset Disposition Proceeds (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 HGC Loan Agreement). 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 Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under pursuant to this subsection clause (i) with respect to any sale (a "Relevant Sale") if the Borrower advises the Administrative Agent in respect writing at the time the Net Asset Disposition Proceeds from such Relevant Sale are received that it intends to reinvest all or any portion of such Net Cash Asset Disposition Proceeds 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 Cash Asset Disposition Proceeds are actually in fact committed to be reinvested in by the Borrower pursuant to a purchase contract, subscription or similar agreement providing for the acquisition of such similar replacement or income producing assets with that is executed by the Borrower and the related seller within 180 days from the date of such 90 day periodRelevant Sale and (B) the acquisition of such replacement or income producing assets occurs within 180 days from the date on which such purchase contract is so executed and delivered. Promptly If, at any time after the end occurrence of such 90 a Relevant Sale and prior to the acquisition of the related replacement or income producing assets, either of the 180 day periodperiods provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase 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 an Event of Default shall have occurred and be continuing, then the Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly immediately prepay the Obligations Loans in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it manner described in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs first sentence of replacing, rebuilding or restoring such Propertythis clause (i).
(ii) If If, at any time any Loan Party incurs any Indebtedness (other than Permitted Indebtedness), the Borrower shall, immediately after such issuance or incurrence, prepay the Closing Date outstanding Loans in an aggregate principal amount equal to 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.
(iii) 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 Subsidiary shall issue new equity securities of the Borrower's Subsidiaries; (whether common or preferred stock or otherwise), other than equity securities issued ii) the issuance by any Loan Party of Equity Securities in connection with the exercise formation of employee stock optionsSubsidiaries 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 ten (10) Business Days following the date of receipt by a Loan Party of any Net Insurance Proceeds or Net Condemnation Proceeds that, Borrower shall promptly notify Bank together with any other Net Insurance Proceeds or Net Condemnation Proceeds received by the Loan Parties during the fiscal year of the estimated Net Cash Proceeds 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 issuance to be received by or longer period permitted below for the account completion of Borrower any repair, restoration or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary replacement of Net Cash Proceeds of such issuancethe affected Property), the Borrower shall prepay the Obligations 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 at the 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, 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 Borrower but not actually expended within such time period to repair, restore or replace the Property from which such Net Insurance Proceeds 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 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum TGC Facility Share of the aggregate principal amount Excess Cash Flow as of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reducedthird-preceding Calculation Date.
(vi) If at any time the sum Borrower receives an indemnification payment pursuant to the assignment of the unpaid principal balance 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 Revolving Loans 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 L/C Obligations then outstanding shall be Borrower ("Net Indemnification Proceeds"). To the extent that such amount is in excess of the Borrowing Base as then determined outstanding Term Loan and computedRevolving 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 reinvested by the Borrower pursuant to a purchase contract, subscription or similar agreement providing for the acquisition of such income producing assets that is executed by the Borrower and the related seller within 180 days from the date of such Relevant Sale and the acquisition of such income producing assets occurs within 180 days from the date on which such agreement is so executed and delivered. If, at any time after the receipt of Net Indemnification Proceeds and prior to the use thereof to mitigate related losses and/or acquisition of related income producing assets, (i) the Borrower fails to advise the Administrative Agent of and diligently execute a plan to mitigate its losses as provided in clause (A), (ii) either of the 180 day periods provided in clause (B) of the preceding sentence shall elapse without execution of the related purchase contract, subscription or similar agreement or the occurrence of the related acquisition, as applicable, or (iii) an Event of Default shall have occurred and be continuing, then the Borrower shall immediately and without notice or demand pay over prepay the Loans in the amount (net of the excess to Bank as and for a mandatory prepayment on such Obligations, TGC Facility Share of amounts used or reinvested by the Borrower in accordance with each such prepayment first to be applied the preceding sentence prior to the Revolving Loans until paid occurrence of such event) and in full with any remaining balance to be applied to Cash Collateralize the L/C Obligationsmanner described in the first sentence of this clause (vi).
(vii) If at any time Change in Control shall occur, the Dollar Equivalent Borrower shall, promptly and in any event no later than ten (10) Business Days following the occurrence of such event, prepay the sum of outstanding Term Loans and the aggregate principal amount of the total outstanding Revolving Loans in Euros exceeds full. To the Euro Sublimitextent 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 immediately and without notice or demand pay over the amount Cash Collateralize such outstanding Letters of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceededCredit.
(viii) Unless If any Regulatory Event shall occur, the Borrower otherwise directsshall, promptly and in any event no later than ten (10) Business Days following the 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 outstanding Term Loan and Revolving Loan and there are issued and outstanding Letters of Credit, Borrower shall Cash Collateralize such outstanding Letters of Credit.
(ix) All partial prepayments of the Loans under this made pursuant to Section 2.8(b2.8(c)(i) through (vi) shall be applied first to prepay the outstanding Term Loans and, after the Term Loan until Loans have been paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇full, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be thereafter applied to prepay the outstanding Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the receipt of Net Proceeds by the Parent Guarantor or any of its Subsidiaries from (i) If Borrower the incurrence of any Indebtedness of the IP Parties, IntelAzul or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss Azul Viagens (other than with respect to any PropertyIndebtedness permitted to be incurred pursuant to Section 4.10), then Borrower shall promptly notify Bank of such proposed Disposition (ii) any Collateral Sale, or Event of Loss (including iii) a Pre-paid Points Purchase (other than a Blocked Pre-paid Points Purchase) for which Net Proceeds, together with the aggregate amount of Net Proceeds previously received from Pre-paid Points Purchases (other than Blocked Pre-paid Points Purchases) during the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary same fiscal year, are in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary excess of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 1008% of the amount TudoAzul Gross Billings for the four most recently completed Quarterly Reporting Periods (the “Permitted Pre-paid Points Basket Amount”) (such excess, “Excess Points Net Proceeds”) (each of all the events set forth in clauses (i), (ii) and (iii), a “Mandatory Prepayment Event”), the Issuer will cause the Notes of the relevant Series’ Allocable Share of such Net Cash Proceeds; provided that (x) so long as no Default or Event Proceeds remaining after the redemption of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property First Priority Secured Debt in accordance with the relevant Collateral Documentsdocumentation governing such First Priority Secured Debt (plus accrued and unpaid interest on the principal amount being prepaid to, but excluding, the Prepayment Date, additional amounts and any premium thereon) (ythe “Notes Prepayment Amount”) to be paid to the Holders in accordance with the terms of this subsection shall not require any Indenture by a date that is ten Business Days after the receipt of such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in (such remittance date, as the aggregate so long as no Default or Event of Default then existscase may be, and (z) a “Prepayment Date”); provided that, in the case the Net Proceeds derived from any Collateral Sale is derived from the disposition of Azul Cargo Collateral, such Net Proceeds shall not be applied for the benefit of the First Priority Secured Parties but shall be applied in accordance with the Azul Cargo Intercreditor Agreement (to the extent then in effect).
(b) On such Prepayment Date, the Trustee will, subject to receipt thereof, apply the Notes Prepayment Amount to prepay the maximum principal amount of Notes (plus accrued and unpaid interest, and additional amounts, if any, on the principal amount being prepaid to, but excluding, the Prepayment Date) that may be prepaid with such Notes Prepayment Amount at a prepayment price equal to the redemption price that would be due if the Notes of the relevant Series were being redeemed pursuant to an optional redemption (as applicable to that Series) on the applicable Prepayment Date.
(c) Notwithstanding anything to the contrary in Section 3.08(a) or (b), if following a Mandatory Prepayment Event but prior to the related Prepayment Date, the Issuer pays the related Notes Prepayment Amount (inclusive of any Disposition not covered by clause (y) aboveapplicable premium, so long as no Default or Event of Default then existsand additional amounts, if Borrower states in its notice any) to the Holders of such event that Borrower a Series on an intervening Payment Date pursuant to the provisions of Section 4.01, no mandatory prepayment pursuant to the provisions of Section 3.08(a) and (b) will be required.
(d) In connection with any mandatory prepayment of the Notes of a Series pursuant to this Section 3.08, the Issuer, or the relevant Subsidiary intends to reinvest, within 90 days Trustee of behalf of the applicable DispositionIssuer pursuant to written instructions from the Issuer to the Trustee, shall issue a written notice to the Holders of the Series at least two (2) Business Days prior to the Prepayment Date, which notice shall include a description of the Mandatory Prepayment Event, the Net Cash Proceeds thereof in assets similar aggregate principal amount of Notes of the Series to be prepaid, the prepayment price and the Prepayment Date.
(e) Any prepayment made pursuant to this Section 3.08 shall be made pursuant to the assets which were subject procedures set forth in this Indenture, except to such Disposition, then Borrower the extent inconsistent with Section 3.08(c). The Issuer shall not be required to make a any mandatory prepayment under this subsection in or sinking fund payment with respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day periodNotes, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced except pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full 3.08 and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving CommitmentSection 3.09(b); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Indenture (Azul Sa)
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time Subject to time make or agree to make a Disposition or shall suffer an Event Section 2.13(g), not later than the tenth Business Day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower Holdings or such Subsidiary any of its Restricted Subsidiaries in respect thereofof (A) andone or more Asset Sales in an aggregate amount in excess of $2,500,000 per annum (other than any Disposition of any property or assets permitted by Section 6.05 (except Section 6.05(b)(xi) and (b)(xvii))) or (B) one or more Casualty Events in an aggregate amount in excess of $2,500,000 per annum, promptly upon receipt by the Lead Borrower or such Subsidiary of shall apply the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall received with respect thereto to prepay the Obligations outstanding Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceedsaccordance with Section 2.13(d); provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require if at the time any such prepayment would be required with respect to any Net Cash Proceeds received pursuant to this clause (a), the Lead Borrower is required to offer to repurchase the Permitted First Priority Refinancing Debt or any New Incremental Notes that are secured on account a pari passu basis with the Obligations (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of an Event of Loss so long as the documentation governing such Indebtedness with such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require respect of any such prepayment with respect Asset Sale or any such Casualty Event (such Indebtedness (or Permitted Refinancing thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Lead Borrower may apply such Net Cash Proceeds received on account a pro rata basis (determined on the basis of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days outstanding principal amount of the applicable DispositionTerm Loans and Other Applicable Indebtedness at such time); provided, further that the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect portion of such Net Cash Proceeds allocated to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower Other Applicable Indebtedness shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in exceed the amount of such Net Cash Proceeds not so reinvested. The required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash 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 prepayment of Other Applicable Indebtedness, and the amount of each such prepayment of the Term Loans that would have otherwise been required pursuant to this clause (a) shall be applied first reduced accordingly; provided, further, that to the outstanding Term Loans until paid extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in full and then to any event within ten (10) Business Days after the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first date of such rejection) be applied to prepay the Revolving LoansTerm Loans pursuant to this clause (a). If Bank so requestsNotwithstanding the foregoing, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary amount of Net Cash Proceeds from any Asset Sale or Casualty Event required to be (x) reinvested in assets (other than working capital assets) used or useful in the business of the Lead Borrower and its Restricted Subsidiaries or (y) applied to repay outstanding Loans, in each case as provided in this Section 2.13(a), shall be reduced on a dollar-for-dollar basis by the amount of any investment (not funded with Net Cash Proceeds from any other Asset Sale or Casualty Event that previously reduced a Loan Party’s or its Restricted Subsidiary’s obligation to repay Loans pursuant to this Section 2.13(a)) made by the Lead Borrower or any of its Restricted Subsidiaries in assets (other than working capital assets) used or useful in the business of the Lead Borrower and its Restricted Subsidiaries (including pursuant to a Permitted Acquisition (including a Permitted Acquisition of the equity interests in another Person)) within 90 days prior to the receipt of such issuanceNet Cash Proceeds.
(b) On each Excess Cash Flow Payment Date, the Lead Borrower shall prepay make mandatory principal prepayments of the Obligations Loans in the manner set forth in clause (d) below in an amount equal to the remainder (if positive) of (A) the Applicable Excess Cash Flow Percentage of Excess Cash Flow, if any, for such Excess Cash Flow Payment Period minus (B) the aggregate amount of voluntary prepayments of any Term Loan during such Excess Cash Flow Payment Period, in each case, solely to the extent that such prepayments were made in accordance with Section 2.12 and were not funded with the incurrence of any Funded Debt (other than revolving Funded Debt).
(c) In the event that any Loan Party or any Restricted 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 Restricted Subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01 (other than any Credit Agreement Refinancing Indebtedness)), the Lead Borrower shall, substantially simultaneously with (and in any event not later than the tenth 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(d).
(d) Mandatory prepayments of outstanding Loans under this Agreement shall be allocated (other than Net Cash Proceeds of any Credit Agreement Refinancing Indebtedness incurred pursuant to Section 2.25, which may, at the election of the Lead Borrower, be applied on a pro rata basis to any Class of outstanding Term Loans in respect of which such Indebtedness constitutes Credit Agreement Refinancing Indebtedness as directed by the Lead Borrower) by the Lead Borrower among each Class of outstanding Term Loans on a pro rata basis, with each Class to be allocated its Term Loan Percentage of the amount of the respective repayment and applied against the remaining scheduled installments of principal due in respect of the Term Loans to the outstanding principal amounts due under Sections 2.11(a)(i), (ii), (iii) and (iv) respectively as directed by the Lead Borrower (or in the absence of direction, in direct order of maturity), except to the extent the terms of any Incremental Term Loans, Other Term Loans, New Term Loans or Extended Term Loans provide for a less favorable treatment of any Incremental Term Loans, Other Term Loans, New Term Loans or Extended Term Loans with respect to any such mandatory prepayments.
(e) Notwithstanding any other provisions of this Section 2.13, to the extent that any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary (a “Foreign Disposition”) or the Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”), in each case giving rise to a prepayment event pursuant to Section 2.13(a), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.13(b) are or is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds. Each such prepayment shall Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.13 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Lead Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such amounts repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms repayment of the Loan Documents.
Loans pursuant to this Section 2.13 to the extent provided herein and (iiiB) If after to the Closing Date extent that the Lead Borrower has determined in good faith that repatriation of any of or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of all the estimated Net Cash Proceeds of any Foreign Disposition, any Foreign Casualty Event or Excess Cash Flow would have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such issuance repatriation) with respect to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary, provided that, in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.13 (or such issuanceExcess Cash Flow would have been so required if it were Net Cash Proceeds), (x) the applicable Borrower shall prepay the Obligations in applies an aggregate amount equal to 100% such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the applicable Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary.
(f) The applicable Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Lead Borrower setting forth in reasonable detail the calculation of the amount of such Net Cash Proceedsprepayment (the “Prepayment Amount”) and (ii) at least seven Business Days’ prior written notice of such prepayment. Each such notice of prepayment shall be applied in such amounts specify the prepayment date (the “Prepayment Date”), the Type and to such Obligations as agreed to by Borrower Class of each Term Loan being prepaid and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
each Term Loan (vior portion thereof) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepaid. All prepayments of Loans Borrowings under this Section 2.8(b) 2.13 shall be applied first subject to the Term Loan until paid in full Section 2.16 and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving CommitmentSection 2.05(b); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇if applicable, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ but shall otherwise be without premium or penalty, and shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made accompanied by the payment of accrued and unpaid interest on the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to but excluding the date of payment.
(g) Notwithstanding any other provisions of this Section 2.13, any Lender may (but solely to the extent the Lead Borrower elects for this clause (g) to be applicable to a given Prepayment Amount payable pursuant to Section 2.13(a)) decline to accept all (but not less than all) of its share of any such prepayment together with (any such Lender, a “Declining Lender”) by providing written notice to the Administrative Agent no later than five Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If any Lender does not give a notice to the Administrative Agent on or prior to such tenth Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. On any Prepayment Date, an amount equal to the Prepayment Amount minus the portion thereof allocable to Declining Lenders, in each case for such Prepayment Date, shall be paid to the Administrative Agent by the Borrowers and applied by the Administrative Agent ratably to prepay Term Loans owing to Lenders (other than Declining Lenders) in the manner described in Section 2.13(a) for such prepayment. Any amounts due Bank under Section 3.3that would otherwise have been applied to prepay Term Loans owing to Declining Lenders shall be retained by the Borrowers (such amounts, “Declined Amounts”).
Appears in 1 contract
Mandatory Prepayments. (ia) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2), shall be incurred by the Borrower or any Domestic Subsidiary shall at any time or from time to time make or agree to make that is a Disposition or shall suffer Restricted Subsidiary, an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received thereof shall be applied on account the date of an Event receipt of Loss so long as such Net Cash Proceeds are applied to replace or restore toward the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable DispositionLoans as set forth in Section 2.12(e).
(b) If any Refinancing Notes or any Specified Refinancing Term Loans shall be incurred by the Borrower, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt of such Net Cash Proceeds toward the prepayment of the Loans being refinanced thereby.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Domestic Subsidiary that is a Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in assets similar to respect thereof, such Net Cash Proceeds shall be applied on such date toward the assets which were subject to such Dispositionprepayment of the Loans as set forth in Section 2.12(e); provided that notwithstanding the foregoing, then (i) the Borrower shall not be required to make prepay the Loans pursuant to this paragraph (c) in excess of the amount such that the Total Senior Secured Leverage Ratio immediately after such prepayment would be equal to or less than the Total Senior Secured Leverage Ratio immediately prior to effecting such Asset Sale (the amount of Net Cash Proceeds not required to prepay the Loans as a mandatory prepayment under result of this subsection provision is herein referred to as “Excess Sale Proceeds”), (ii) during any fiscal year, the Borrower shall not be permitted to deliver a Reinvestment Notice in respect of such Net Cash Proceeds to the extent that after giving effect to such Asset Sale or Recovery Event, such Net Cash Proceeds are actually reinvested in such similar assets Proceeds, together with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of all such issuance to Asset Sales and Recovery Events received in such fiscal year, would exceed 5% of Consolidated Total Assets, (iii) on each Reinvestment Prepayment Date, the Loans shall be received prepaid as set forth in Section 2.12(e) by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (iv) on the date (the “Trigger Date”) that is one year after any such Reinvestment Prepayment Date, the Loans shall be prepaid as set forth in Section 2.12(e) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date.
(d) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such Net Cash Proceedsfiscal year to the extent accompanied by permanent optional reductions of the Revolving Commitments and all optional prepayments of the Term Loans, New Term Loans or Specified Refinancing Term Loans during such fiscal year (in each case, other than a) any such prepayment constituting a Discounted Voluntary Prepayment, or b) to the extent any such prepayment is funded with the proceeds of new long-term Indebtedness (including the Senior Unsecured Notes) or any Equity Issuance, toward the prepayment of the Loans as set forth in Section 2.12(e)). Each such prepayment shall be applied 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 amounts and prepayment is made, are required to be delivered to the Administrative Agent. Notwithstanding the foregoing, all mandatory prepayments pursuant to this Section 2.12(d) shall be limited to the extent that the Borrower reasonably determines that such Obligations as agreed mandatory prepayments would result in adverse tax consequences related to the repatriation of funds in connection therewith by Borrower and Bank. Borrower acknowledges Foreign Subsidiaries of the Borrower; provided that its performance hereunder any amount so excluded from any such mandatory prepayment pursuant to the operation of this sentence shall not limit increase the rights and remedies of Bank for any breach of Section 7.5 Available Amount pursuant to clause (Maintenance of Subsidiariesa)(i) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsdefinition thereof.
(iiie) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance Amounts to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit connection with the rights and remedies prepayment of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced Term Loans pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding 2.12 shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving prepayment of the Term Loans in accordance with Section 2.18(b) until paid in full with full. The application of any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then Loans pursuant to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Section 2.12 shall be permitted made, first, to first be applied Base Rate Loans and, second, to the Revolving Loans outstandingLIBO Rate Loans. Each prepayment of the Loans under this Section 2.8(b) 2.12 shall be made accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(f) Notwithstanding anything to the contrary in Section 2.12(e) or 2.18, with respect to the amount of any mandatory prepayment described in Section 2.12(a), (c) or (d) above (such amounts, the “Prepayment Amount”), at any time when Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans as provided in paragraph (e) above, on the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit J (or such other form approved by the payment Administrative Agent), and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the principal Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Mandatory Prepayment Date, the Borrower shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted (it being understood that any Lender’s failure to object prior to the relevant Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of the offer to prepay contained in such Prepayment Option Notice and the amount to be prepaid andin respect of Term Loans held by such Lender) prepayment as described above; provided that, in the case of following such offer and application, any Term Loans, accrued interest thereon amount remaining unapplied shall be returned to the date of prepayment together with any amounts due Bank under Section 3.3Borrower.
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Sources: Credit Agreement (Allison Transmission Holdings Inc)
Mandatory Prepayments. (ia) Without limiting the requirements of Section 7.5 hereof regarding the consent of Majority US Lenders to sales of property by Restricted Persons which are not permitted by Section 7.5, the proceeds of any sale of property (net of all reasonable costs and expenses, but excluding proceeds consisting of tangible property to be used in the business of Restricted Persons) by any Restricted Person (other than a sale of property permitted under Section 7.5 hereof) shall be placed in a collateral account under the control of Administrative Agent in a manner satisfactory to Administrative Agent immediately upon such Restricted Person's receipt of such proceeds and maintained therein for a period of ninety (90) days following the date of receipt thereof in cash (in this Section 2A.7(a) referred to as the "Collateral Period"). If Borrower any consideration consists of an ----------------- instrument or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss security, the Collateral Period shall, with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the each amount of the estimated Net Cash Proceeds to be cash received by Borrower or such Subsidiary in respect thereof, continue until ninety (90) and, promptly upon days following such Restricted Person's receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event cash unless, pursuant to the following sentence, an approved investment included such cash; any cash in a collateral account may be invested in Cash Equivalents designated by US Borrower. During each Collateral Period, US Borrower may propose to invest such proceeds in other property subject to the approval of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then existsMajority US Lenders, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of shall thereafter invest such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested proceeds in such similar assets with such 90 day periodproperty so approved by Majority US Lenders. Promptly after At the end of each Collateral Period or, if an investment is so proposed and approved during such 90 day periodCollateral Period, Borrower shall notify Bank whether Borrower or within one hundred-eighty (180) days after such Subsidiary proposed investment has reinvested been so approved by Majority US Lenders, any such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds proceeds which have not been so reinvested, invested by US Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requestsreduction of the outstanding principal balance of the US Loans at such time, all proceeds of such Disposition or Event of Loss and the US Commitment shall be deposited with Bank (or its agent) and held reduced by it in an amount equal to the Collateral Account prepayment applied to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertyUS Loans.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vib) If at any time the sum of US Facility Usage exceeds the unpaid principal balance of US Commitment (whether due to a reduction in the Revolving Loans and the L/C Obligations then outstanding shall be US Commitment in excess of the Borrowing Base as then determined and computedaccordance with this Agreement, or otherwise), US Borrower shall immediately and without notice or upon demand pay over prepay the amount principal of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving US Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the an amount of the excess at least equal to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstandingexcess. Each prepayment of Loans principal under this Section 2.8(b) section shall be made accompanied by the payment of all interest then accrued and unpaid on the principal amount so prepaid. Any principal or interest prepaid pursuant to this section shall be in addition to, and not in lieu of, all payments otherwise required to be prepaid and, in paid under the case Loan Documents at the time of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3such prepayment.
Appears in 1 contract
Mandatory Prepayments. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to resulting in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Propertyfiscal year of the Borrower, then (x) the Borrower shall promptly notify Bank the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and, and (y) promptly upon receipt by the Borrower or such the Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any each Disposition not covered by clause (y) above, so long as no Default or and Event of Default then existsLoss, if the Borrower states in its notice of such event that the Borrower or the relevant applicable Subsidiary intends to reinvest, within 90 365 days of the applicable DispositionDisposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Dispositionlike-kind assets, then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this subsection Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 365-day period. Promptly after the end of such 90 365-day period, the Borrower shall notify Bank the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Revolving Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Swing Loans. If Bank the Administrative Agent or the Required Lenders so requestsrequest following the occurrence and during the continuation of an Event of Default and pending any such reinvestment, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) the Administrative Agent and held by it in the Collateral Account. So long as no Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to be disbursed to or at the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Date, the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise)securities, other than equity securities issued in connection with the exercise of employee stock optionsoptions and equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify Bank the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or assumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied to the Revolving Loans until paid in such amounts full and then to such Obligations as agreed to by Borrower and Bankthe Swing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank the Lenders for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If after at any time the Closing Date Borrower or any Subsidiary sum of the unpaid principal balance of the Revolving Loans, Swing Loans and the L/C Obligations then outstanding shall issue any Indebtedness for Borrowed Moneybe in excess of the Commitment, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, the Borrower shall promptly notify Bank within one (1) Business Day and without notice or demand pay over the amount of the estimated Net Cash Proceeds of such issuance excess to be received by or the Administrative Agent for the account of Borrower or the Lenders as and for a mandatory prepayment on such Subsidiary Obligations, with each such prepayment first to be applied to the Revolving Loans until payment in respect thereof. Promptly upon receipt full and then to the Swing Loans until paid in full, with any remaining balance to be held by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Administrative Agent in the Collateral Account as security for the Obligations in an aggregate amount equal owing with respect to 100% the Letters of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan DocumentsCredit.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) The Borrower shall, on each date the Revolving Credit Commitment is Commitments are reduced pursuant to Section 2.132.9, prepay the Revolving Loans and Swing Loans and, if necessary, Cash Collateralize prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has Commitments have been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viiiv) Unless the Borrower otherwise directs, prepayments of Revolving Loans under this Section 2.8(b2.7(b) shall be applied first to the Term Loan Borrowings of Base Rate Loans until paid payment in full and then to the Revolving Loans (thereof with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be any balance applied to Borrowings of Eurodollar Loans in the Revolving Loans outstandingorder in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together but shall not be subject to Section 8.1 hereof. Each prefunding of L/C Obligations shall be made in accordance with any amounts due Bank under Section 3.37.4.
Appears in 1 contract
Mandatory Prepayments. (i) If Subject to the proviso below, upon the occurrence of any Casualty Event, the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount mandatory prepayment of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to the sum of (x) one hundred percent (100% %) of the Net Cash Proceeds received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (y) any accrued but unpaid interest on such principal amount of all such Net Cash Proceedsthe Term Loan being prepaid; provided that (x) so long as no Default or Event of Default then existshas occurred and is continuing at the time the Borrower or any Obligor shall have received such Net Cash Proceeds, this subsection shall not require if, within five (5) Business Days following the occurrence of any such prepayment with respect Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent a notice (each, a “Casualty Event Reinvestment Notice”) to the effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds received on account from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of an Event purchase or construction of Loss so long as other assets useful in the business of the Borrower or its Subsidiaries, then such Net Cash Proceeds are of such Casualty Event may be applied to replace or restore the relevant Property for such purpose in accordance with the relevant Collateral Documentslieu of such mandatory prepayment, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 provided further that, in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvestedapplied within one hundred eighty (180) days following the occurrence of such Casualty Event, the Borrower shall promptly prepay make a mandatory prepayment of the Obligations Term Loan in an aggregate amount equal to the amount sum of (A) one hundred percent (100%) of the unused balance of such Net Cash Proceeds not so reinvested. The received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (B) any accrued but unpaid interest on such principal amount of each the Term Loan being prepaid, provided, further, that to the extent that the property subject to the Casualty Event is Collateral, then any such prepayment acquired, replaced, repaired, purchased or constructed property shall be applied first to Collateral in which the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requestsAdministrative Agent, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs benefit of replacingthe Lenders, rebuilding or restoring such Propertyhas been granted a security interest under the Security Documents.
(ii) If after Upon receipt of the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)Tucson Real Estate Sale Proceeds in accordance with Section 8.22, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank make a mandatory prepayment of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100% %) of the Net Cash Proceeds received by the Borrower from Icagen-T in connection with such sale, to be applied pursuant to Section 3.03(d) below.
(iii) Upon the receipt of upfront proceeds pursuant to Section 8.18(b), the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount not to exceed the lesser of (i) the entire outstanding Obligations as of such date and (ii) $2,000,000, to be applied pursuant to Section 3.03(d) below; provided that if a sale of the North Carolina Business occurs, then no mandatory prepayment shall be required pursuant to this clause (b)(iii). Notwithstanding the forgoing, the amount of such Net Cash Proceeds. Each such any mandatory prepayment required by this Section 3.03(b)(iii) shall be applied in such amounts and decreased by the amount of any prepayment made pursuant to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms 3.03(b)(iii) of the Loan DocumentsIcagen-T Credit Agreement.
(iv) If after Upon the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debtsale of the North Carolina Business in accordance with Section 8.26, the Borrower shall promptly notify Bank make a mandatory prepayment of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100% %) of the amount of such Net Cash Proceeds. Each Proceeds received by the Borrower in connection with such prepayment shall sale, to be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced3.03(d) below.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Forbearance Agreement and Second Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. Notwithstanding any other provisions of this Section 5.2, (i) If Borrower to the extent that any of or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of all the Net Cash Proceeds of such Disposition or any asset sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale Prepayment Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Dispositiona “Foreign Asset Sale”), the Net Cash Proceeds thereof in assets of any Recovery Event from a Restricted Foreign Subsidiary (a “Foreign Recovery Event”), or Excess Cash Flow that is attributable to Restricted Foreign Subsidiaries or a Subsidiary that is subject to minimum liquidity or similar regulations are prohibited or delayed by applicable local law or such regulations from being repatriated to the assets which were subject United States or used to such Dispositiontransferred to the Borrower or any other Person, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 5.2 but may be retained by the applicable Restricted Foreign Subsidiary or regulated Subsidiary so long, but only so long, as the applicable local law or regulation will not permit repatriation to the United States (the Borrower hereby agreeing to cause the applicable Restricted Foreign Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation) or transfer to the Borrower or other Person, and once such repatriation or transfer of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or applicable regulation, such repatriation or transfer will be immediately effected and such repatriated or transferred Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 5.2 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Asset Sale, any Foreign Recovery Event or Excess Cash Flow would have a material adverse tax cost consequence with respect to such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after or Excess Cash Flow, the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to or Excess Cash Flow so affected may be retained by the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loansapplicable Restricted Foreign Subsidiary; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid andthat, in the case of this clause (ii), on or before the date on which any Term LoansNet Cash Proceeds from any Foreign Asset Sale or Foreign Recovery Event so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to Section 5.2(a) (or, accrued interest thereon in the case of Excess Cash Flow, a date on or before the date that is six months after the date such Excess Cash Flow would have been so required to be applied to prepayments pursuant to Section 5.2(a)(ii) unless previously repatriated in which case such repatriated Excess Cash Flow shall have been promptly applied to the date repayment of prepayment together with any amounts due Bank under the Term Loans pursuant to Section 3.35.2(a)), (x) the Borrower applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Restricted Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Restricted Foreign Subsidiary.
Appears in 1 contract
Mandatory Prepayments. (i) If Following satisfaction of any required prepayment provisions in respect thereof under the Senior Secured Obligations, and subject to Section 2.04(b)(i)(B), if (x) the Borrower or any Subsidiary shall at Disposes of any time property, or from time to time make (y) any Casualty Event occurs, which in the aggregate results in the realization or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by the Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of LossProceeds, the Borrower shall prepay the Obligations in an aggregate principal amount of Loans equal to 100% (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided, that, no such prepayment shall be required pursuant to this Section 2.04(b)(i) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.04(b)(i)(A) (which notice may only be provided if no Event of Default has occurred and is then continuing).
(A) With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event, at the option of the amount Borrower, the Borrower may reinvest all or any portion of all such Net Cash Proceeds in assets useful for its business within twelve (12) months following receipt of such Net Cash Proceeds; provided that (xi) so long as no Default or an Event of Default then existsshall have occurred and be continuing, this subsection the Borrower shall not require be permitted to make any such prepayment with respect reinvestments (other than pursuant to a legally binding commitment that the Borrower entered into at a time when no Event of Default is continuing) and (ii) if any Net Cash Proceeds received on account of an Event of Loss are not so long as reinvested by the deadline specified above or if any such Net Cash Proceeds are applied no longer intended to replace be or restore cannot be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require Asset Percentage of any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in shall be applied to the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days prepayment of the applicable DispositionLoans as set forth in this Section 2.04.
(B) On each occasion that the Borrower must make a prepayment of the Loans pursuant to this Section 2.04(b)(i), the Net Cash Proceeds thereof Borrower shall, as promptly as reasonably practicable, but in assets similar to any event within five Business Days after the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect date of realization or receipt of such Net Cash Proceeds (or, in the case of prepayments required pursuant to Section 2.04(b)(i)(A), as promptly as reasonably practicable, but in any event within five (5) Business Days after the extent deadline specified therein, or of the date the Borrower reasonably determines that such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower no longer intended to be or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have cannot been be so reinvested, Borrower shall promptly prepay as the Obligations case may be), make a prepayment, of the principal amount of Loans in an amount equal to the amount Asset Percentage of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition realized or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyreceived.
(ii) If after Upon the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise occurrence of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (a Change of Control) hereof or any other terms , the Borrower shall offer to prepay the aggregate outstanding amount of the Loan DocumentsLoans at such time in cash, without any premium or penalty (other than as set forth in Section 2.04(b)(iii)).
(iii) If after In the Closing Date event that the Borrower or prepays any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced outstanding Loans pursuant to Section 2.132.04(a) or (b) or in respect of any repayment of the Loans following an acceleration of the Loans pursuant to Section 9.02, prepay (A) the Revolving Loans and, if necessary, Cash Collateralize Borrower shall pay the L/C Obligations by the amountMake Whole Premium plus accrued and unpaid interest, if any, necessary if such prepayment occurs on or prior to reduce the sum second anniversary of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to Closing Date, (B) the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess a premium equal to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum 4.0% of the aggregate principal amount of the total Revolving Loans in Euros exceeds Facility so prepaid if such prepayment occurs after the Euro Sublimit, second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date and (C) the Borrower shall immediately and without notice or demand pay over a premium equal to 2.0% of the aggregate principal amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each Facility so prepaid if such prepayment to be applied occurs after the third anniversary of the Closing Date and on or prior to the Revolving Loans until paid in full or fourth anniversary of the Euro Sublimit is no longer exceededClosing Date.
(viiiiv) Unless [INTENTIONALLY OMITTED.]
(v) In the event that the Merger does not occur prior to or on the date that is 90 days after the Closing Date, the Borrower otherwise directsshall cause, prepayments of Loans under this Section 2.8(b) shall within three Business Days after such date, to be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction prepaid, without premium or penalty, an aggregate principal amount of the Revolving Commitment); provided that the proceeds from the divestiture outstanding Loans equal to 100% of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Escrow Proceeds. For the avoidance of doubt, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ interest shall be permitted to first be applied to accrue on the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to Escrow Proceeds until the date of prepayment together with any amounts or repayment, and shall be due Bank under Section 3.3and payable on such date.
Appears in 1 contract
Mandatory Prepayments. (ia) If The Borrowers shall forthwith prepay the Loans upon receipt by any Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank its Subsidiaries of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Asset Sale Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100such Asset Sale Proceeds. Any such mandatory prepayment shall be applied in accordance with Section 2.8(g) below and shall include, to the extent any Term Loans are prepaid, a prepayment premium of 1.00% of the principal amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event Term Loans prepaid. Notwithstanding any provision of Default then existsthis Agreement to the contrary, for purposes of this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) aboveSection 2.8(a), so long as no Default or Event of Default then existsshall have occurred and be continuing at the time the applicable Asset Sale is consummated, if Borrower states "Asset Sale Proceeds" shall not include:
(i) Asset Sale Proceeds from an Asset Sale permitted under Section 7.6(c) which Asset Sale Proceeds are reinvested in its notice Permitted Theater Investments, Permitted Acquisitions or Consolidated Maintenance Capital 42 52 Expenditures permitted pursuant to Section 7.5 within 180 days of such event sale; provided that any Asset Sale Proceeds not so reinvested (the "Unused Portion") shall be deemed Asset Sale Proceeds for purposes of this Section 2.8(a) on the earlier of (1) the expiration of such 180-day period or (2) the date on which such Borrower or Subsidiary determines that the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall Unused Portion will not be required so reinvested;
(ii) Asset Sale Proceeds from the sale of a Theater permitted under Section 7.6(c) consummated pursuant to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds Permitted Asset Swap to the extent such Net Cash Proceeds proceeds are actually reinvested applied in such similar assets with such 90 day period. Promptly after payment of the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to purchase price for the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loansrelated Permitted Acquisition; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in if the Borrowing Base shall first be applied related acquisition is not consummated prior to the Revolving Loans. If Bank so requestsdate 30 days after such sale such Asset Sale Proceeds shall, all proceeds subject to clause (i) above, be deemed Asset Sale Proceeds for purposes of this Section 2.8(a) on such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.date;
(iii) If after Asset Sale Proceeds consisting of any award of compensation for any asset or property or group thereof taken by condemnation or eminent domain and any insurance proceeds for the Closing Date Borrower loss of or damage to any Subsidiary shall issue any Indebtedness for Borrowed Money, asset or property or group thereof (other than Indebtedness any insurance proceeds used for Borrowed Money expressly permitted repair or replacement in accordance with paragraph (iv) of this Section 2.8(a)) to the extent that (A) such awards or proceeds do not exceed, in the aggregate, $100,000 in any Fiscal Year, (B) such awards or proceeds are used to replace or repair such asset or property and (C) such replacement or repair is completed within 180 days of receipt of any such awards or proceeds; provided that at such time as any repair or replacement is abandoned or is otherwise discontinued or is not diligently pursued, as determined by Section 7.1the Agent in its sole but reasonable discretion, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds unused portion of such issuance to be received by awards or proceeds shall constitute Asset Sale Proceeds at such time for the account purposes of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of this Section 7.1 or any other terms of the Loan Documents.2.8; or
(iv) If after the Closing Date Borrower or Asset Sale Proceeds consisting of any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or insurance proceeds for the account loss of Borrower or damage to any asset or property or group thereof constituting a Leasehold Property or equipment used in connection therewith to the extent that (A) such proceeds are used to replace or repair such asset or property, (B) such proceeds do not exceed in any Fiscal Year in the aggregate $500,000 or such Subsidiary greater amount as the Agent has consented to for such Fiscal Year in respect thereof. Promptly upon receipt writing, (C) such proceeds are required by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first related Lease to be applied to the Revolving Loans until paid replacement or repair of such Leasehold Property or equipment used in full connection therewith, (D) the Borrowers shall have delivered to the Agent written notice of receipt of such proceeds promptly after receipt thereof, together with any remaining balance a written certificate of the Borrowers that: (1) such proceeds shall be substantially sufficient to complete such replacement or repair in accordance with all applicable laws, regulations and ordinances; and (2) to the best knowledge of the Borrowers, no Default or Event of Default has arisen or will arise as a result of such loss, damage, replacement or repair, (E) pending application of such proceeds to the required replacement or repair, unless the proceeds are required to be applied remitted to Cash Collateralize and held by the L/C Obligations.
(vii) If at any time lessor under the Dollar Equivalent terms of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.related Lease until
Appears in 1 contract
Sources: Credit Agreement (Silver Cinemas International Inc)
Mandatory Prepayments. (ia) If Borrower any Indebtedness shall be incurred by the Company or any Subsidiary shall at of its Restricted Subsidiaries (excluding any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss Indebtedness incurred in accordance with respect to any PropertySection 7.02), then Borrower not later than the next Business Day following such incurrence, the Term Loans shall promptly notify Bank of such proposed Disposition or Event of Loss (including be prepaid by an amount equal to the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition incurrence.
(b) If on any date following the Closing Date the Company or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless the Company intends to acquire or repair assets useful in the business of, or otherwise reinvest in, the Company and its Restricted Subsidiaries with all or any portion of Lossthe relevant Net Cash Proceeds, Borrower not later than the fifth Business Day following the receipt by the Company or such Subsidiary of such Net Cash Proceeds, the Term Loans shall prepay the Obligations in be prepaid by an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (xi) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment shall only be required with respect to the aggregate amount of Net Cash Proceeds from any Asset Sale or Recovery Event received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding the Company in excess of $250,000 in the aggregate so long as no Default or Event of Default then exists, 20,000,000 and (zii) notwithstanding the foregoing, on each Reinvestment Prepayment Date the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount (or, in the case of a Reinvestment Prepayment Date described in clause (b) of the definition thereof with respect to only a portion of the relevant Reinvestment Deferred Amount, an amount equal to such portion) with respect to the relevant Reinvestment Event, provided however that Net Cash Proceeds from a Specified Disposition shall not be subject to any Disposition reinvestment rights and shall instead be applied in its entirety to prepay the Term Loans.
(c) Not later than five Business Days following a Specified Distribution, the Company shall prepay in full all outstanding Term Loans.
(d) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Term B-2 Loans shall be prepaid by an amount equal to (x) the ECF Percentage of such Excess Cash Flow minus (y) voluntary payments of Term Loans (including Incremental Term Loans) under Section 2.11, Credit Agreement Refinancing Debt that is secured on a pari passu basis with the Obligations and Revolving Credit Loans (to the extent accompanied by a permanent commitment reduction), in each case during such fiscal year or following such fiscal year and prior to such Excess Cash Flow Application Date to the extent not covered by previously deducted pursuant to this clause (y) abovein any prior period, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds but only to the extent that such Net Cash Proceeds prepayments are actually reinvested in such similar assets not made with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank long-term Indebtedness (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceedsrevolving Indebtedness). Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms earlier of the Loan Documentsdate on which the financial statements of the Company referred to in Section 6.01(a), for the fiscal year with respect to which such prepayment is made, (i) are required to be delivered to the Lenders and (ii) are actually delivered.
(iiie) If after In the Closing Date Borrower or event of any Subsidiary shall issue any Indebtedness for Borrowed Moneytermination of all the Revolving Credit Commitments, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and each date Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitment is reduced pursuant to Section 2.13Commitments or at any other time, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of (i) the aggregate Committed Credit Exposure of all the Revolving Credit Lenders plus (ii) the outstanding aggregate principal amount or Assigned Dollar Value of Revolving all Competitive Loans and L/C Obligations then outstanding to the amount to which made by all the Revolving Credit Commitment has been so reduced.
Lenders plus (viiii) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall at any time exceed the Total Revolving Credit Commitment, then (A) on the last day of any Interest Period for any Eurocurrency Standby Borrowing and (B) on any other date in the event any Base Rate Borrowing shall be outstanding, the Borrowers shall prepay Standby Loans in an amount equal to the lesser of (x) the amount necessary to eliminate such excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over (y) the amount of the applicable Borrowings referred to in subclauses (i) and (ii) above and, after the Revolving Credit Loans shall have been repaid or prepaid in full, replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and each Issuing Lender with respect to) Letters of Credit issued by such Issuing Lender in an amount sufficient to eliminate such excess; provided, that in the case of any mandatory reduction of the Total Revolving Credit Commitments pursuant to Section 2.10(e), such prepayments of Revolving Credit Loans and replacement or cancellation of (or such making of other arrangements with respect to) Letters of Credit shall be completed simultaneous with the effectiveness of such mandatory reduction of the Revolving Credit Commitments. If, on any date, the sum of (1) the aggregate Committed Credit Exposure of all the Revolving Credit Lenders and (2) the outstanding aggregate principal amount or Assigned Dollar Value of all Competitive Loans made by all the Revolving Credit Lenders shall exceed 105% of the Total Revolving Credit Commitments (less the L/C Commitment), then the Borrowers shall, not later than the third Business Day following the date notice of such excess is received from the Administrative Agent, prepay one or more Standby Borrowings in an aggregate principal amount sufficient to Bank eliminate such excess. On the date of any termination or reduction of the Revolving Credit Commitments pursuant to this clause (d), the Borrowers shall pay or prepay so much of the Standby Borrowings as shall be necessary in order that the Revolving Extensions of Credit will not exceed the Total Revolving Credit Commitments after giving effect to such termination or reduction.
(f) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (d) above), to the extent that the Company has determined that (i) any of or all the Net Cash Proceeds of any Asset Sale (other than a Specified Disposition) or Recovery Event by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries (or branches of Foreign Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the Company (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Foreign Subsidiary or its directors or officers (or gives rise to a mandatory prepayment on material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) such Obligationsrepatriation or any distribution of the relevant amounts would result in material adverse Tax consequences, with each the portion of such prepayment first Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the Revolving Loans until paid times set forth in full with this Section 2.12 but may be retained by the applicable Foreign Subsidiary or branch (the Company hereby agreeing to cause the applicable Foreign Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law, risking the liability described in clause (ii) above, or incurring material adverse Tax consequences); provided, that for a period of 180 days from receipt of such Net Cash Proceeds, if such repatriation, and once such repatriation of any remaining balance of such affected Net Cash Proceeds becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, such distribution will be immediately affected and such distributed Net Cash Proceeds will be promptly (and in any event not later than ten Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to be applied the repayment of loans pursuant to this Section 2.12. For the avoidance of doubt, but without limiting the Company’s obligations under this Section 2.12, in no circumstance shall this Section 2.12 require any Foreign Subsidiary to make any dividend of or otherwise repatriate for the benefit of the Company any portion of any Net Cash Collateralize the L/C ObligationsProceeds received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(viig) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess All prepayments made pursuant to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) 2.12 shall be applied first subject to the Term Loan until paid in full Section 2.21, but shall otherwise be without premium or penalty, and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made accompanied by the payment of accrued interest on the principal amount to be prepaid repaid to but excluding the date of payment.
(h) Each prepayment of Term Loans pursuant tomade under clauses (a), (b) or (c) of this Section 2.12 shall be applied to the remaining scheduled installmentspro rata among each Class of the Term Loans then outstanding and within each such Class to the remaining principal repayment installments thereof as directed by the Company and and, in the case absence of such direction, to the remaining scheduled installments to the remaining principal repayment installments of the Term Loans in direct order of maturity. Each prepayment of the outstanding Term B-2 Loans made under clause (d) of this Section 2.12 shall be applied pro rata to the remaining principal repayment installments thereof as directed by the Borrower and, in the absence of such direction, to the remaining principal repayment installments of the Term B-2 Loans in direct order of maturity.
(i) The Company shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.
(j) With respect to any mandatory prepayments of the Term LoansLoans under this Section 2.12 (other than Section 2.12(a), accrued interest thereon 2.12(b) (only with respect to a Specified Disposition) and 2.12(c)), each Term Loan Lender may reject all or a portion of its Term Loan Percentage, or other applicable share provided for under this Agreement, of such mandatory prepayment of Term Loans (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 p.m., New York time, two Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Loan Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment together with of Term Loans. Subject to the terms of this Agreement, any amounts due Bank under Section 3.3Declined Proceeds remaining shall be retained by the Company.
Appears in 1 contract
Sources: Credit Agreement (Harsco Corp)
Mandatory Prepayments. (iA) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make Immediately upon the occurrence of a Disposition or shall suffer an Event Change of Loss with respect to any PropertyControl, then the Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount prepay all of the estimated outstanding Obligations, plus the applicable Prepayment Premium, if any;
(B) Immediately upon the receipt by any Obligor of any Net Cash Proceeds from the incurrence of any Debt (other than Debt permitted to be received by Borrower incurred or such Subsidiary in respect thereof) andissued pursuant to Section 6.3), promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the Net Proceeds from such incurrence of Debt plus the applicable Prepayment Premium, if any;
(C) Immediately upon the occurrence of any Permitted Asset Disposition pursuant to clause (c) of the definition thereof, the Borrower agrees to prepay the Obligations in an amount equal to 100% of all the Net Proceeds from such Net Cash Proceeds; provided Permitted Asset Disposition plus, to the extent applicable, the exit fee pursuant to Item 5 of the Terms Schedule (provided, for the avoidance of doubt, that (x) so long as no Default or Event of Default then exists, this subsection Prepayment Premium shall not require any such prepayment apply with respect to Net Cash Proceeds received on account any prepayment of the Obligations pursuant to this clause (C));
(D) Immediately upon any Obligor suffering an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Dispositionproperty, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Proceeds from such Event of Loss plus the applicable Prepayment Premium, if any; provided, that if the Borrower notifies the Agent upon or prior to receipt of such Net Cash Proceeds. Each Proceeds that the Borrower intends to replace or repair the property in respect of which such prepayment Net Proceeds are received, then the Borrower may apply all or any part of such Net Proceeds to such replacement or repair of property, so long as (i) no Event of Default shall have occurred and be continuing, and (ii) such Net Proceeds are actually applied to such replacement or repair within 180 days of receipt (or committed in writing to be so applied within 180 days of receipt and deposited in an escrow account of the Borrower until so applied), and provided, further, that to the extent any such Net Proceeds are not actually so applied within the time periods specified in the foregoing clause (ii) or an Event of Default shall have occurred and be continuing before such Net Proceeds have been so applied or committed in writing to be applied, then such Net Proceeds shall be immediately applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit prepay the rights and remedies of Bank for any breach of Section 7.5 Obligations;
(Maintenance of SubsidiariesE) or Section 8.1(i) (Change of Control) hereof or any other terms Upon the completion of the Loan Documents.
(iii) If after Initial Public Offering and immediately upon the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted receipt by Section 7.1, Borrower shall promptly notify Bank Holdings of the estimated Net Cash Proceeds of such issuance to be received by or for net proceeds thereof, the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% Two Million Three Hundred Seventy-Five Thousand Dollars ($2,375,000.00) plus the applicable Prepayment Premium;
(F) (E) Each prepayment of the amount Obligations pursuant to the foregoing provisions of such Net Cash Proceeds. Each such prepayment Section 1.2(a)(iv)(A)-(DE) shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of accordance with Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans 1.7; and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Loan Agreement (Heritage Distilling Holding Company, Inc.)
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event Not later than the tenth day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary (other than a Store Conversion Transaction not involving Net Cash Proceeds in excess of $1,000,000) in respect thereof) andof any Term Loan Priority Collateral Sale, promptly upon receipt by the Borrower or such Subsidiary shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(f); provided that, if (i) the Borrower shall deliver a certificate of a Responsible Officer to the Administrative Agent at the time of receipt thereof setting forth the Borrower’s intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries within 365 days of receipt of such Disposition proceeds, (ii) such proceeds are at all times following the receipt thereof and prior to such reinvestment, held in a depositary account maintained in accordance with Section 5.22 hereof and subject to a Blocked Account Agreement in favor of the Collateral Agent and the ABL Collateral Agent and (iii) no Default or Event of LossDefault shall have occurred and shall be continuing at the time of such certificate or at the proposed time of the application of such proceeds, such proceeds shall not be required to prepay outstanding Loans except to the extent not so used at the end of such 365-day period or committed to be so used at the end of and so used within 180 days after the end of such 365-day period, at which time any such proceeds not so used shall be applied to prepay outstanding Loans in accordance with Section 2.13(f); provided, further, that the Net Cash Proceeds received with respect thereto shall be reinvested (v) such that after giving effect to such reinvestment, the Related Real Estate Collateral shall not constitute more than 45% of the aggregate Value of the Real Estate Collateral Properties and the Related Real Estate Collateral, (w) such that after giving effect to such reinvestment, the owned Real Estate Collateral Properties shall constitute at least 50% of the aggregate Value of the Real Estate Collateral Properties and the Related Real Estate Collateral, (x) to the extent attributable to a Loan Party, in assets of a Loan Party, (y) to the extent attributable to Related Real Estate Collateral or Real Estate Collateral Properties, in Related Real Estate Collateral or Real Estate Collateral Properties and (z) in Term Loan Priority Collateral.
(b) In the event that the Borrower or any Restricted Subsidiary conducts any Other Asset Sale for which the Net Cash Proceeds exceed $5,000,000, then the Borrower shall prepay the Obligations in an aggregate amount equal to apply 100% of the amount Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(f) not later than the tenth day following the receipt of all such Net Cash Proceeds; provided that if (x) so long as the Borrower shall deliver a certificate of a Responsible Officer to the Administrative Agent at the time of receipt thereof setting forth the Borrower’s intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries within 365 days of receipt of such proceeds, (y) such proceeds attributable to Term Loan Priority Collateral are at all times following the receipt thereof and prior to such reinvestment, held in a depositary account maintained in accordance with Section 5.22 hereof and subject to a Blocked Account Agreement in favor of the Collateral Agent and the ABL Collateral Agent and (z) no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore have occurred and shall be continuing at the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice time of such event that Borrower certificate or at the relevant Subsidiary intends to reinvest, within 90 days proposed time of the applicable Dispositionapplication of such proceeds, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower proceeds shall not be required to make prepay outstanding Loans except to the extent not so used at the end of such 365-day period or committed to be so used at the end of and so used within 180 days after the end of such 365-day period, at which time any such proceeds not so used shall be applied to prepay outstanding Loans in accordance with Section 2.13(f); provided, further, that the Net Cash Proceeds received with respect thereto shall be reinvested (v) to the extent attributable to Term Loan Priority Collateral, such that after giving effect to such reinvestment, the Related Real Estate Collateral shall not constitute more than 45% of the aggregate Value of the Real Estate Collateral Properties and the Related Real Estate Collateral, (w) to the extent attributable to Term Loan Priority Collateral, such that after giving effect to such reinvestment, the owned Real Estate Collateral Properties shall constitute at least 50% of the aggregate Value of the Real Estate Collateral Properties and the Related Real Estate Collateral, (x) to the extent attributable to a mandatory prepayment Loan Party, in assets of a Loan Party, (y) to the extent attributable to Term Loan Priority Collateral that is Related Real Estate Collateral or Real Estate Collateral Properties, in Related Real Estate Collateral or Real Estate Collateral Properties and (z) to the extent attributable to Term Loan Priority Collateral, in other Term Loan Priority Collateral.
(c) No later than 90 days after the end of each Fiscal Year of the Borrower, commencing with the Fiscal Year ending closest to February 28, 2014, the Borrower shall prepay outstanding Loans in accordance with Section 2.13(f) in an aggregate principal amount equal to (x) 50% of Excess Cash Flow for the Fiscal Year then ended minus (y) voluntary prepayments of Loans under this subsection Section 2.12 made during such Fiscal Year with Internally Generated Cash; provided that such prepayments do not occur in connection with a refinancing of all or any portion of such Indebtedness; provided, further, that the Excess Cash Flow percentage for any Fiscal Year with respect to which Excess Cash Flow is measured shall be reduced to (A) 25% if the Total Secured Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.00:1.00 but greater than 1.50:1.00 and (B) zero if the Total Secured Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 1.50:1.00.
(d) In the event that the Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed (other than Permitted Indebtedness), the Borrower shall, substantially simultaneously with (and in any event not later than the first Business Day next following) the receipt of such Net Cash Proceeds by the Borrower or such Restricted Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Loans in accordance with Section 2.13(f).
(e) Not later than the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 tenth day period. Promptly after following the end receipt of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assetsrespect of any ▇▇▇▇▇ Sale, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the apply an amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first equal to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agentx) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank 100% of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary first $750,000,000 of Net Cash Proceeds received with respect thereto and (y) thereafter, 50% of the Net Cash Proceeds in excess of such issuanceamount up to an amount that would cause the Total Secured Leverage Ratio on a pro forma basis after giving effect to such prepayment to be 1.50:1.00, in each case to prepay outstanding Loans in accordance with Section 2.13(f).
(f) Mandatory prepayments of outstanding Loans under this Agreement shall be allocated pro rata between the Loans, the Other Loans and the Extended Loans (unless Other Loans or Extended Loans agreed to receive less than their pro rata share) and applied first, to the next four succeeding scheduled installments of principal due in respect of the Loans, Other Loans and Extended Loans under Sections 2.11(a)(i) and (ii), respectively, second, pro rata against the remaining scheduled installments of principal due in respect of the Loans, Other Loans and the Extended Loans under Sections 2.11(a)(i) and (ii), respectively (excluding the final payments on the Maturity Date of the Loans (or the maturity date in respect of such Other Loans or Extended Loans) under Sections 2.11(a)(i) and (ii), respectively and third, to the final payment on the Maturity Date of the Loans (or the final payment on the maturity date of such Other Loans or Extended Loans).
(g) The Borrower shall prepay deliver to the Obligations Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Responsible Officer of the Borrower setting forth in an aggregate amount equal to 100% reasonable detail the calculation of the amount of such Net Cash Proceedsprepayment and (ii) to the extent practicable (except in respect of prepayments required under Section 2.13(d)), at least three Business Days prior written notice of such prepayment. Each such notice of prepayment shall be applied in such amounts specify the prepayment date, the Type of each Loan being prepaid and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
each Loan (vior portion thereof) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepaid. All prepayments of Loans Borrowings under this Section 2.8(b) 2.13 shall be applied first subject to the Term Loan until paid in full Section 2.16, but shall otherwise be without premium or penalty, and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made accompanied by the payment of accrued and unpaid interest on the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to but excluding the date of prepayment together with any amounts due Bank under Section 3.3payment.
Appears in 1 contract
Sources: Amendment Agreement (Supervalu Inc)
Mandatory Prepayments. (i) If [Reserved].
(ii) Subject to clause (vii) below, in the event that the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated its Restricted Subsidiaries receives Net Cash Proceeds to be received by Borrower or such Subsidiary in respect of any Prepayment Asset Sale or any Casualty/Condemnation Event, in each case, in excess of $3,000,000 in any Fiscal Year or $10,000,000 in the aggregate, the Borrower shall, not later than the fifth Business Day following the receipt thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100100.0% of such Net Proceeds in excess of such threshold (such Net Proceeds being referred to as the “Specified Net Proceeds”) to prepay the outstanding principal amount of all Loans in accordance with clause (vi) of this Section 2.10(b); provided, that if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent that the Borrower and/or its Restricted Subsidiaries intend to reinvest the Specified Net Proceeds in assets used or useful in the business of the Borrower or any of its Restricted Subsidiaries (other than Cash Proceeds; provided or Cash Equivalents, but including any reinvestment in the form of an acquisition or a similar Investment and any Investment in any Person that (x) becomes a Restricted Subsidiary as a result of such Investment), then so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account exists at the time of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice delivery of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Dispositionnotice, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection Section 2.10(b)(ii) in respect of the Specified Net Proceeds to the extent that (1) the Specified Net Proceeds are so reinvested within 18 months following receipt thereof or (2) the Borrower or any of its Restricted Subsidiaries has committed so to reinvest the Specified Net Proceeds during such 18-month period and the Specified Net Proceeds are so reinvested within 180 days after the expiration of such 18-month period, provided further that to the extent the Specified Net Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly (and in any event no later than the 10th Business Day after the expiration of the applicable period) prepay the Loans in accordance with the terms hereof (but without giving effect to clause (A) above) in an aggregate principal amount equal to the amount of the Specified Net Proceeds not so reinvested.
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, except (A) for Indebtedness incurrred under Section 6.01(c) (to the extent consisting of Incremental Facilities or Replacement Term Loans), (j), (p) (to the extent consisting of Indebtedness previously incurred under any of the clauses listed in this clause (iii)(A)), (q), (u), (w) or (y) or (B) to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of the Bridge Loans in accordance with the requirements under Section 2.21) the Borrower shall, substantially simultaneously with (and in any event not later than the next succeeding Business Day after) the receipt of such Net Cash Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100.0% of such Net Proceeds to prepay the outstanding principal amount of the relevant Loans in accordance with clause (vi) of this Section 2.10(b); provided, that no such prepayment shall be required to be made to the extent such Net Cash Proceeds are actually reinvested required to be applied (and are so applied) to repayment of Loans under (and as defined in) the 2020 Senior Secured Credit Agreement (as in such similar assets effect on the date hereof).
(iv) In the event that Holdings, the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance and sale by any Parent Company of its Capital Stock, the Borrower shall, substantially simultaneously with such 90 day period. Promptly after (and in any event not later than the end next succeeding Business Day after) the receipt of such 90 day periodNet Proceeds by Holdings, the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100.0% of such Net Proceeds to prepay the outstanding principal amount of the relevant Loans in accordance with clause (vi) of this Section 2.10(b). Notwithstanding anything in this Section 2.10(b) to the contrary:
(A) the Borrower shall notify Bank whether not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.10(b)(ii) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Casualty/Condemnation Event affects the assets of any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited under any applicable law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager or member of management of such Foreign Subsidiary has reinvested (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions, for a period not to exceed 12 months from the date of the event or calculation giving rise to such repatriation, required by applicable law to permit such repatriation without violating local law or incurring material tax, regulatory or cost consequences); it being understood that if the repatriation of the relevant affected Specified Net Cash Proceeds in such similar assetsProceeds, as the case may be, is permitted under the applicable law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days following the event giving rise to the relevant Specified Net Cash Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Specified Net Proceeds have and the repatriated or Specified Net Proceeds will be promptly (and in any event not been so reinvested, later than five (5) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.10(b) to the extent required herein (without regard to this clause (A)),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.10(b)(ii) to the extent that the relevant Specified Net Proceeds are received by any joint venture or other non Wholly-Owned Subsidiary, in each case, for so long as the distribution to the Borrower of such Specified Net Proceeds would be prohibited under the Organizational Documents or joint venture agreements governing such joint venture or other non Wholly-Owned Subsidiary; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the event giving rise to the relevant Specified Net Proceeds, the relevant joint venture or other non Wholly-Owned Subsidiary will promptly distribute the relevant Specified Net Proceeds and the distributed Specified Net Proceeds will be promptly (and in any event not later than five (5) Business Days after such distribution) applied to the repayment of the Loans pursuant to this Section 2.10(b) to the extent required herein (without regard to this clause (B)),
(C) if the Borrower determines in good faith in consultation with the Administrative Agent that the repatriation to the Borrower of any amounts required to mandatorily prepay the Obligations Loans pursuant to Section 2.10(b)(ii) that are attributable to Foreign Subsidiaries would result in a material Tax liability to the Borrower or any Restricted Subsidiary or any of the direct or indirect owners of Capital Stock of the Borrower (including any material withholding Tax or any material tax distribution) (such amount, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.10(b)(ii) shall be reduced by the Restricted Amount; it being understood that to the extent that the repatriation of the relevant Specified Net Proceeds attributable to the relevant Foreign Subsidiary would no longer have an adverse tax consequence within the 365-day period following the applicable event giving rise to the relevant Specified Net Proceeds, an amount equal to the Specified Net Proceeds and to the extent available, not previously applied pursuant to this clause (C) shall be promptly applied to the repayment of the Loans pursuant to this Section 2.10(b) to the extent required herein (without regard to this clause (C)), and
(D) notwithstanding anything in this Agreement to the contrary, the non-application of any amount required to be prepaid pursuant to Sections 2.10(b)(ii) as a result of the exceptions set forth in clause (C) above shall not constitute a Default or Event of Default, and any such amounts shall remain available for working capital and general corporate purposes of the Loan Parties and their Restricted Subsidiaries for so long as such amounts are not required to be prepaid pursuant to this Section 2.10(b).
(v) Any Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Loans required to be made by the Borrower pursuant to this Section 2.10(b) (other than clause (iii) or (iv) thereof), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case the remaining amount thereof may be retained by the Borrower. If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Loans.
(vi) Each prepayment of Loans pursuant to this Section 2.10(b) shall be applied ratably to each Class of Loans then outstanding, provided that any prepayment of Loans pursuant to clause (iii) of this Section 2.10(b) resulting from Indebtedness of the kind described in the parenthetical to such clause shall be applied to the applicable Class of Loans being refinanced. With respect to each Class of Loans, all accepted prepayments under this Section 2.10(b) shall be applied against the remaining scheduled installments of principal due in respect of such Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments in respect of such Loans in direct order of maturity), and each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentage of the applicable Class. Any mandatory prepayment by the Borrower of the Loans of any Class pursuant to this Section 2.10(b) shall be applied on a pro rata basis to the then outstanding Loans of such Class, irrespective of whether such outstanding Loans are ABR Loans or Eurodollar Loans; provided, that in the case of a mandatory prepayment under clause (iii) or, if no Lenders exercise the right to waive such mandatory prepayment pursuant to clause (v), any other clause of this Section 2.10(b), the amount of such Net Cash Proceeds not so reinvested. The amount of each such mandatory prepayment shall be applied first to the then outstanding Term Loans until paid in full of such Class that are ABR Loans and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds outstanding Loans of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it Class that are Eurodollar Loans in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of a manner that minimizes the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance payments required to be received made by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations2.15.
(vii) If at any time Notwithstanding anything to the Dollar Equivalent contrary, until the payment in full of the sum Obligations under and as defined in the 2020 Senior Secured Credit Agreement, no mandatory prepayments of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately be required pursuant to Section 2.10(b)(ii) and without notice no event or demand pay over the amount of the excess circumstance shall give rise to Bank as and for a mandatory prepayment under Section 2.10(b)(ii) except to the extent of (and in an amount not to exceed) the portion (if any) of the Net Proceeds that (I) both (x) in the absence of this Section 2.10(b)(vii) would give rise to a mandatory prepayment under Sections 2.10(b)(ii) and (y) constitute mandatory prepayment amounts under Section 2.10(b) of the 2020 Senior Secured Credit Agreement (or equivalent provision under any other document governing the Indebtedness secured by a Lien on such Obligations, a pari passu with each such prepayment the 2020 Senior Secured Credit Facilities) that have been declined by the applicable lenders thereunder in accordance with Section 2.10(b) of the 2020 Senior Secured Credit Agreement (or any equivalent provision under any other document governing any Indebtedness secured by a Lien on a pari passu with the 2020 Senior Secured Credit Facilities) and (II) are permitted to be applied to prepay the Revolving Loans until paid in full under Section 6.03(b) of the 2020 Senior Secured Credit Agreement (or equivalent provision under any other document governing the Euro Sublimit is no longer exceededIndebtedness secured by a Lien on a pari passu with the 2020 Senior Secured Credit Facilities).
(viii) Unless Borrower otherwise directs, prepayments of Loans Prepayments made under this Section 2.8(b2.10(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(bA) shall be made accompanied by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon as required by Section 2.12 and (B) subject to the date of prepayment together with any amounts due Bank under Section 3.32.15.
Appears in 1 contract
Mandatory Prepayments. (a) Within five Business Days of any Permitted Asset Disposition, Borrowers shall prepay Domestic Revolver Loans or UK Revolver Loans (according to the ownership of such assets), in an amount equal to the Net Proceeds of such disposition, and Borrowers shall permanently reduce the Domestic Revolver Commitments or UK Revolver Commitments, as applicable, in the amount of such Net Proceeds; provided, that (i) If Borrowers shall not be required to effect such permanent reduction in the Revolver Commitments unless the failure to effect such permanent reduction would create an obligation of any Borrower to make an offer to repurchase Existing Senior Notes, and (ii) such Net Proceeds shall not be required to be so applied on such date to the extent that such proceeds are used to acquire Property useful in the business of the Obligors within 180 days of receipt of such Net Proceeds (or a binding commitment to acquire such Property is entered into within 180 days and such reinvestment is actually made within 360 days), and to the extent the Net Proceeds exceed $500,000, Borrower Agent shall have delivered an officer’s certificate within five Business Days of such Permitted Asset Disposition stating such intent. Borrowers shall prepay Revolver Loans in the amount of any Subsidiary Net Proceeds not actually reinvested within such 180 (or 360) day period and reduce the Domestic Revolver Commitments or the UK Revolver Commitments, as applicable, in an amount equal to such prepayment. Notwithstanding the foregoing, (i) Borrowers shall not be permitted to reinvest Net Proceeds resulting from any Permitted Asset Disposition described in clause (a) of the definition thereof (but shall not be required to effect any permanent reduction in the commitments in connection with any prepayment from the New Proceeds thereof), (ii) Borrowers shall prepay Revolver Loans with any Net Proceeds, and shall not be permitted to reinvest such Net Proceeds at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to when any Property, then Borrower shall promptly notify Bank of such proposed Disposition Default or Event of Loss Default exists, and (including the amount iii) any Property acquired with such Net Proceeds shall be free of Liens, other than Permitted Liens.
(b) Within five Business Days of the estimated receipt of any proceeds of insurance or condemnation awards paid in respect of any Equipment or Real Estate, Borrowers shall prepay Domestic Revolver Loans or UK Revolver Loans (according to the ownership of such Equipment or Real Estate), and Borrowers shall permanently reduce the Domestic Revolver Commitments or UK Revolver Commitments, as applicable; provided, that (i) Borrowers shall not be required to effect such permanent reduction in the Revolver Commitments unless the failure to effect such permanent reduction would create an obligation of any Borrower to make an offer to repurchase Existing Senior Notes and (ii) such Net Cash Proceeds shall not be required to be received by so applied on such date to the extent that Borrower Agent shall have delivered an officer’s certificate to Agent on or prior to such Subsidiary date stating that such proceeds shall actually be used to acquire Property useful in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary the business of the Net Cash Proceeds Obligors within 180 days of receipt of such Disposition Net Proceeds (or Event of Lossa binding commitment to acquire such Property is entered into within 180 days and such reinvestment is actually made within 360 days), Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided further, that (xi) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account (ii) the replaced Property is free of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral DocumentsLiens, other than Permitted Liens; and (yiii) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice amount of such event that Borrower proceeds or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower awards from any single casualty or condemnation does not exceed $1,000,000. Borrowers shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations Revolver Loans in the amount of such any Net Cash Proceeds not so reinvested. The amount of each actually reinvested within such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank 180 (or its agent360) day period and held by it reduce the Domestic Revolver Commitments or UK Revolver Commitments, as applicable, in the Collateral Account an amount equal to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyprepayment.
(iic) If after On the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)Commitment Termination Date, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving all Revolver Loans (with a concurrent permanent reduction of the Revolving Commitmentunless sooner repaid hereunder); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Mandatory Prepayments. (a) Unless the Required Prepayment Lenders shall 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 Proceeds 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) Subject to Section 2.12(g), unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings, the Borrower or any Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event (i) If Borrower or any Subsidiary in an amount less than $150,000,000, then, unless a Reinvestment Notice shall at any time or from time be delivered to time make or agree 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, (i) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to make a Disposition or shall suffer an Event of Loss the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (ii) on the date (the “Trigger Date”) that is six months after any Propertysuch Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date or (ii) in an amount equal to or greater than $150,000,000, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated 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) Subject to Section 2.12(g), 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)(A) 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 and (B) the aggregate principal amount of voluntary prepayments of loans under the First Lien Credit Agreement made by the Borrower pursuant to Section 2.11(b) of the First Lien Credit Agreement during such fiscal year, 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 received delivered to the Lenders.
(d) Subject to Section 2.12(g), 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 outstanding Term Loans being prepaid. 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) Unless the Required Prepayment Lenders shall otherwise agree, 100% of the First Lien Declined Proceeds shall be applied no later than one Business Day after the date of receipt of such First Lien Declined Proceeds toward the prepayment of the Term Loans as set forth in Section 2.12(d).
(f) Subject to Section 2.12(g), on each occasion that Permitted Other Indebtedness is issued or such Subsidiary in respect thereof) andincurred pursuant to Section 7.2(aa), promptly upon the Borrower shall within three Business Days of receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall Permitted Other Indebtedness prepay the Obligations Term Loans in an aggregate principal amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account from such issuance or incurrence of an Event of Loss so long as such Net Cash Proceeds are applied Permitted Other Indebtedness.
(g) Notwithstanding anything in this Section 2.12 to replace or restore the relevant Property in accordance with the relevant Collateral Documents, contrary (y) this subsection shall not require any such prepayment with respect but subject to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (ye) above), so long as no Default or Event mandatory prepayments of Default then exists, if Borrower states in its notice of such event outstanding Second Lien Term Loans that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not would otherwise be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans made under this Section 2.8(b) 2.12 shall be applied first required to be made prior to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3First Lien Termination Date.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Engility Holdings, Inc.)
Mandatory Prepayments. (a) Within five Business Days of the receipt of any proceeds of insurance or condemnation awards paid in respect of any Equipment or Real Estate, Borrowers shall prepay Revolver Loans and Borrowers shall permanently reduce the Revolver Commitments; provided, that (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower Borrowers shall not be required to effect such permanent reduction in the Revolver Commitments unless the failure to effect such permanent reduction would create an obligation of any Borrower to make a mandatory prepayment under this subsection an offer to repurchase the Second Lien Notes and (ii) such Net Proceeds shall not be required to be so applied on such date to the extent that Borrower Agent shall have delivered an officer’s certificate to Agent on or prior to such date stating that such proceeds shall actually be used to acquire Property useful in respect the business of the Obligors within 270 days (or such longer period as Agent shall consent to in writing) of receipt of such Net Cash Proceeds (or a binding commitment to acquire such Property is entered into within 270 days and such reinvestment is actually made within the extent such Net Cash Proceeds are actually reinvested in such similar assets with such later of 365 days or 90 day period. Promptly after days from the end date of such 90 day periodbinding commitment or, Borrower in each case, such period as Agent shall notify Bank whether Borrower or such Subsidiary consent to in writing), provided further, that (i) no Event of Default has reinvested such Net Cash Proceeds in such similar assetsoccurred and is continuing and (ii) the replaced Property is free of Liens, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower other than Permitted Liens. Borrowers shall promptly prepay the Obligations Revolver Loans in the amount of such any Net Cash Proceeds not so reinvested. The amount of each actually reinvested within such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests270 or 365, all proceeds of such Disposition or Event of Loss shall be deposited with Bank as applicable, day period (or its agentsuch period as consented to by Agent hereunder) and held by it reduce the Revolver Commitments in the Collateral Account an amount equal to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyprepayment.
(iib) If after On the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)Commitment Termination Date, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving all Revolver Loans (with a concurrent permanent reduction of the Revolving Commitmentunless sooner repaid hereunder); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Mandatory Prepayments. (ia) If Borrower or Unless the Required Prepayment Lenders shall otherwise agree, if any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount member of the estimated Charter Group shall receive any Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower of any issuance of its Equity Interests or such Subsidiary of the otherwise receive Net Cash Proceeds of pursuant to Section 8(k), then, within two Business Days after such Disposition or Event of Lossreceipt, the Borrower shall prepay the Obligations in apply an aggregate amount equal to 10050% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds (whether or not contributed to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to any of its Subsidiaries) toward the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay prepayment of the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in (i) the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder foregoing requirement shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance apply to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇Paul ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(btributions and (ii) shall be made by the payment of the principal amount to be prepaid and, in the case of any offering or sale of Equity Interests consummated on or prior to the date that is eighteen months after the Stage One Closing Date, the foregoing requirement shall apply only to that portion, if any, of the aggregate amount of the Net Cash Proceeds of all such offerings and sales consummated during such period in excess of $500,000,000.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, (i) unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied within two Business Days after the deadline by which such Reinvestment Notice is otherwise required to be delivered in respect of such Asset Sale or Recovery Event toward the prepayment of the Term Loans (provided that the foregoing requirement shall not apply to the first $5,000,000 of aggregate Net Cash Proceeds received after the Stage One Closing Date) and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans.
(c) The application of any prepayment pursuant to this Section 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.9 shall be accompanied by accrued interest thereon to the date of such prepayment together with any amounts due Bank under Section 3.3on the amount prepaid.
Appears in 1 contract
Sources: Credit Agreement (Charter Communications Holdings Capital Corp)
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly (and in any event within five (5) Business Days) upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, and (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 250,000.00 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in full, then to CapEx Software Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Date, Borrower or any Subsidiary shall (x) issue new equity securities (whether common or preferred stock or otherwise, including, for the avoidance of doubt, any equity raise of any kind), other than common equity securities issued made after obtaining the prior written consent of Bank, or (y) sell equity securities (whether common or preferred stock or otherwise), other than (i) common equity securities of the Borrower issued to management, directors, and employees of the Borrower or any Subsidiary pursuant to any management, director and/or employee benefit plan or compensation plan, (ii) common equity securities issued in connection by any Subsidiary of the Borrower to the Borrower so long as such issuance complies with the exercise relevant provisions of employee stock optionsthe Security Agreement or (iii) equity securities sold after obtaining the prior written consent of Bank, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance or sale, as applicable, to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly (and in any event within three (3) Business Days) upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceissuance or sale, as applicable, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in such amounts full, then to CapEx Software Loans until paid in full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 7.(5) (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Date, Borrower or any Subsidiary shall (x) issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.17.1 hereof, or (y) sell any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money sold after obtaining the prior written consent of Bank, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance or sale, as applicable, to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly (and in any event within three (3) Business Days) upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceissuance or sale, as applicable, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in such amounts full, then to the CapEx Software Loans until paid in full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Date, Borrower or any Subsidiary shall issue any Subordinated Debt or sell any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance or sale, as applicable, to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly (and in any event within three (3) Business Days) upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceissuance or sale, as applicable, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in such amounts full, then to the CapEx Software Loans until paid in full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Within 10 days after receipt of Borrower’s year end audited financial statements, and in any event within 100 days after the end of each fiscal year of Borrower (commencing with the fiscal year ending as of December 31, 2016 and for each fiscal year thereafter), Borrower shall prepay the Obligations by an amount equal to the difference between (1) 50% (the “ECF Percentage”) of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of Borrower and (2) any voluntary prepayments made on the Term Loan or CapEx Software Loans during such fiscal year; provided, however, that (a) for the fiscal year ending as of December 31, 2016, Excess Cash Flow shall be calculated for the period from the Closing Date to December 31, 2016, and (b) commencing with the fiscal year ending as of December 31, 2018, if the Total Funded Debt/EBITDA Ratio is less than 1.00 to 1.00 for two consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.5(b) or (c) in such fiscal year and no Default or Event of Default then exists, the ECF Percentage for such fiscal year shall be reduced to 0%. The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in full, then to the CapEx Software Loans until paid in full and then to the Revolving Loans.
(vi) [Intentionally omitted].
(vii) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(viviii) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computedon the basis of the most recent Borrowing Base Certificate, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viiiix) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan Borrowings of Base Rate Loans until paid payment in full and then to the Revolving Loans (thereof with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be any balance applied to Borrowings of Eurodollar Loans in the Revolving Loans outstandingorder in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of the Term Loan or any Term Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Mandatory Prepayments. (i) If Borrower [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $6,000,000 in any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any PropertyFiscal Year, then the Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of all such Net Cash ProceedsTerm Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (xA) so long as no Default or Event of Default then existsif, this subsection shall not require prior to the date any such prepayment with respect is required to Net Cash be made, the Borrower elects to (I) reinvest (including to make capital expenditures) the Subject Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default business (other than Cash or Event Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of Default then exists, and (z) in the case Opco or any of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such DispositionRestricted Subsidiaries, then the Borrower shall not be required to make a mandatory prepayment under this subsection clause (ii) in respect of such Net Cash the Subject Proceeds to the extent such Net Cash (x) the Subject Proceeds are actually so reinvested in within 720 days following receipt thereof, or (y) Opco or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such similar assets with such 90 720-day period. Promptly period and the Subject Proceeds are so reinvested within 180 days after the end expiration of such 90 720-day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to period (it being understood that if the extent such Net Cash Subject Proceeds have not been so reinvestedreinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Obligations in Subject Loans with the amount of such Net Cash Subject Proceeds not so reinvested. The reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)) may be deemed to have been reinvested after receipt of such Subject Proceeds) or (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of each Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)) and (B) if, at the time that any such prepayment would be required hereunder, Opco or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be applied first allocated to the outstanding Term Subject Loans until paid in full accordance with the terms hereof, and then the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the Revolving Loans; provided that proceeds relating extent the holders of the Other Applicable Indebtedness decline to Eligible Inventory have such Indebtedness Prepaid, the declined amount shall promptly (and Eligible Receivables then included in any event within ten Business Days after the Borrowing Base shall first date of such rejection) be applied to prepay the Revolving LoansSubject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). If Bank so requestsNotwithstanding the foregoing, all proceeds (x) the Net Proceeds Percentage shall be 50.0% if the Senior Debt to Total Assets Ratio for the Test Period most recently ended prior to the date of such Disposition required prepayment is less than or Event equal to 70.0% and greater than 64.5% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of Loss 100.0%), (y) the Net Proceeds Percentage shall be deposited 25.0% if the Senior Debt to Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 64.5% and greater than 60.0% (with Bank (or its agentthe Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 50.0%) and held by it in (z) the Collateral Account Net Proceeds Percentage shall be 0.0% if the Senior Debt to be disbursed to or at Borrower’s direction for application to or reimbursement Total Assets Ratio for the costs Test Period most recently ended prior to the date of replacing, rebuilding such required prepayment is less than or restoring equal to 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such Propertyprepayment at a rate of 25.0%).
(iiiii) If after In the Closing Date Borrower event that Opco or any Subsidiary shall issue new equity securities of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by Opco or any of its Restricted Subsidiaries (whether common other than Indebtedness that is permitted to be incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or preferred stock or otherwisea portion of any Class of Term Loans pursuant to Section 6.01(p), other than equity securities issued (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in connection accordance with the exercise requirements of employee stock optionsSection 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall shall, promptly notify Bank of upon (and in any event not later than two Business Days thereafter) the estimated Net Cash Proceeds receipt thereof of such issuance to be received Net Proceeds by Opco or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceits applicable Restricted Subsidiary, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of such Net Cash Proceeds. Each such prepayment shall be applied the relevant Class or Classes of Term Loans in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 accordance with clause (Maintenance of Subsidiariesvi) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsbelow.
(iv) If after Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower or Opco of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower or Opco of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any Subsidiary shall issue amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any Subordinated Debtwithholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall promptly notify Bank be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the estimated Net Cash Proceeds of such issuance relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancerelevant Subject Proceeds, Borrower shall prepay the Obligations in an aggregate amount equal to 100% the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and applicable Term Loans pursuant to such Obligations Section 2.11(b) as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.otherwise required above;
(v) Borrower shallAny Term Lender may elect, on each date by notice to the Revolving Credit Commitment is reduced pursuant Administrative Agent at or prior to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize time and in the L/C Obligations manner specified by the amountAdministrative Agent, if any, necessary prior to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Term Loans under this Section 2.8(b) shall required to be made by the payment Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.Loans pursuant to
Appears in 1 contract
Sources: Term Loan Credit Agreement (KKR Real Estate Finance Trust Inc.)
Mandatory Prepayments. (a) Not later than thirty (30) Business Days following receipt by the Borrower or any of its Restricted Subsidiaries of Net Cash Proceeds of any Disposition (other than Dispositions permitted under Section 7.6(c), (d), (e), and (f)) or Recovery Event and subject to the Discharge of the Senior Obligations, the Borrower shall prepay the Term Loans, subject to the terms in Section 2.12(i), in accordance with Section 2.12(f) in an amount equal to such Net Cash Proceeds; provided that such prepayment shall not be required (i) if the Borrower has notified the Administrative Agent prior to the expiration of such 30-Business Day period that such Net Cash Proceeds are to be used to repair or replace the property subject to such Disposition or Recovery Event or to acquire other property useful in the business of the Borrower or its Subsidiaries, and either such use or acquisition shall occur, or a binding commitment for such use or acquisition shall have been entered into, within one year of the date of such Disposition or Recovery Event, and (ii) if the aggregate amount of such Net Cash Proceeds that are not reinvested or committed for such reinvestment in accordance with the foregoing clause (i) hereof is less than or equal to (x) with respect to the Net Cash Proceeds of Dispositions, $10,000,000 in any Fiscal Year and (y) with respect to the Net Cash Proceeds of Recovery Events, $5,000,000 in any Fiscal Year; provided further that if the Borrower shall fail to reinvest such Net Cash Proceeds within such one-year period but shall have notified the Administrative Agent prior to the expiration of such one-year period in writing of an Investment that the Borrower has committed to make with such Net Cash Proceeds, then such one-year reinvestment period shall be extended for an additional 180 days.
(b) If the Borrower or any Subsidiary shall at incurs or issues any time Indebtedness (1) not expressly permitted to be incurred or from time issued pursuant to time make Section 7.1 or agree (2) that is intended to make a Disposition constitute Replacement Term Loans or shall suffer an Event Credit Agreement Refinancing Indebtedness in respect of Loss with respect to any PropertyClass of Terms Loans, then subject to, in the case of clause (1), the Discharge of the Senior Obligations, the Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the cause to be prepaid an aggregate principal amount of the estimated Term Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds. Any such prepayment shall be applied in accordance with Section 2.12(f).
(c) [Reserved].
(d) On or prior to the date which is five (5) Business Days after the receipt of a Rejection Notice (as defined in the First Lien Credit Agreement), the Borrower shall cause to be received prepaid an aggregate principal amount of Term Loans equal to 100% of the Declined Proceeds (as defined in the First Lien Credit Agreement).
(e) Upon the occurrence of a Change in Control, the Borrower shall offer to prepay 100% the Loans at par by making such offer in a notice of Change in Control to the Administrative Agent and the Lenders may decline such offer of prepayment pursuant to Section 2.12(g).
(f) Notwithstanding anything to the contrary in the Loan Documents, if at the time that a prepayment pursuant to Sections 2.12(a), (b)(1), (c) or (d) above would be required, the Borrower is required to offer to repurchase Permitted Second Priority Refinancing Debt or Other Term Loans, other permitted Indebtedness (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations) and the Permitted Refinancing of any such Subsidiary Indebtedness, (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations), in respect thereof) and, promptly upon receipt by Borrower or each case pursuant to the terms of the documentation governing such Subsidiary of Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event or excess cash flow (such Permitted Second Priority Refinancing Debt or Other Term Loans or other permitted Indebtedness (or the Permitted Refinancing of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect Indebtedness) required to Net Cash Proceeds received on account of an Event of Loss be offered to be so long as repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds are applied to replace or restore on a pro rata basis (determined on the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account basis of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days outstanding principal amount of the applicable DispositionTerm Loans and Other Applicable Indebtedness at such time; provided, that the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect portion of such Net Cash Proceeds allocated to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower Other Applicable Indebtedness shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in exceed the amount of such Net Cash Proceeds not so reinvested. The required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash 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 prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.12, as applicable, shall be reduced accordingly; 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 event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to this Section 2.12 shall be applied ratably to each Class of Term Loans then outstanding; provided that any prepayment of Term Loans with the Net Cash Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt and (B) each such prepayment shall be applied first paid to the outstanding Term Loans until paid Lenders of each Class in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds accordance with their respective pro rata share of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyprepayment.
(iig) If after In connection with any mandatory prepayment to be made by the Closing Date Borrower pursuant to Sections 2.12(a), (b), (c), (d) or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwiseoffer to prepay pursuant to Section 2.12(e), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall Administrative Agent will promptly notify Bank each Lender, as applicable, of the estimated Net Cash Proceeds date of such issuance to be received by prepayment or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% offer and provide a reasonably detailed calculation of the amount of such Net Cash Proceedsprepayment or offer and of such Lender’s Pro Rata Share of the prepayment or offer. Each applicable Lender may reject all or a portion of its Pro Rata Share of any such mandatory prepayment shall be applied in such amounts and (other than with respect to such Obligations as agreed prepayments with proceeds of Credit Agreement Refinancing Indebtedness pursuant to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries2.12(b) or Section 8.1(iof Replacement Term Loans) or offer (Change such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of Control) hereof such Lender’s receipt of notice from the Administrative Agent regarding such prepayment; provided, however, in no event may the proceeds of any Credit Agreement Refinancing Indebtedness or any other terms Replacement Term Loans be rejected. Each Rejection Notice from a given Lender shall specify the principal amount of the Loan Documentsmandatory prepayment or offer to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans or offer of prepayment thereof, as applicable. Any Declined Proceeds may be retained by the Borrower.
(iiih) If after [Reserved].
(i) Notwithstanding any other provisions of this Section 2.12, (i) to the Closing Date Borrower extent that the repatriation to the United States of any or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank all of the estimated Net Cash Proceeds of such issuance to be received any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceany Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents or other material agreement (not entered into for the purpose of evading the requirements herein), Borrower shall prepay the Obligations in an aggregate amount equal to 100% of 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 2.12 if the applicable local law or applicable material documents or agreements would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts (as determined in the Borrower’s reasonable business judgment) to overcome or eliminate any such restrictions on repatriation, so that an amount equal to the full amount of such Net Cash Proceeds. Each Proceeds will otherwise be subject to repayment under this Section 2.12), and if within one year following the date on which the respective prepayment would otherwise have been required such prepayment shall be applied in repatriation of any of such amounts and affected Net Cash Proceeds is permissible under the applicable local law or applicable material documents or agreements, even if such cash is not actually repatriated at such time, an amount equal to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms amount of the Loan Documents.
Net Cash Proceeds will be promptly (ivand in any event not later than five Business Days) If after applied (net of an amount equal to the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank additional taxes of the estimated Borrower, its Subsidiaries, and the direct and indirect holders of Capital Stock 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 2.12 and (ii) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of such issuance any Foreign Disposition or Foreign Casualty Event could reasonably be expected to be received by or have adverse tax cost consequences for the account of Borrower or any Restricted Subsidiary with respect to such Subsidiary in respect thereof. Promptly upon receipt by Borrower or Net Cash Proceeds, an amount equal to such Subsidiary of Net Cash Proceeds that would be so affected will not be subject to repayment under this Section 2.12. For the avoidance of doubt, nothing in this Section 2.12 shall require the Borrower to cause any amounts to be repatriated to the United States (whether or not such issuanceamounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder).
(j) If the Sterling Acquisition is not consummated by 11:59p.m. on January 31, 2017, the Borrower shall prepay the Obligations Term Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied Escrowed Amount by applying the funds in such amounts and the Segregated Account to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for prepayment, without any breach of Section 7.1 premium or any other terms of the Loan Documentspenalty.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Mandatory Prepayments. (ia) If Borrower or [Reserved].
(b) Within ten (10) Business Days after any Subsidiary Disposition (other than Inventory in the Ordinary Course of Business), Debtor shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including repay the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Loan in an aggregate amount equal to 100% of the amount net cash proceeds of all such Net Cash ProceedsDisposition, and until the date of such payment, such proceeds shall be held in trust for the Lenders; provided provided, however, that (x) so long as no Default or Event of Default shall have occurred and be continuing, if such net cash proceeds do not exceed $5,000,000, then exists, this subsection such repayment shall not require be required to be so applied to the extent such Loan Party reinvests all or any portion of such net cash proceeds within one hundred eighty (180) days after the receipt of such net cash proceeds; provided, further, that if such net cash proceeds shall not have been so reinvested, then such net cash proceeds shall be immediately applied to prepay the Loan. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof.
(c) Debtor shall repay the Loan in an amount equal to insurance proceeds that are not applied to the restoration or repair of damaged Collateral within one hundred eighty (180) days of the receipt of such insurance proceeds.
(d) Each prepayment made pursuant to this Section 2.6 shall be applied against the remaining installments of principal of the Loan, including, without limitation, the final principal repayment installment on the Maturity Date, in inverse order of maturity.
(e) Any prepayment made pursuant to this Section 2.6 shall be accompanied by accrued interest on the principal amount being prepaid to the date of prepayment.
(f) Except as otherwise expressly provided in this Section 2.6, payments with respect to Net Cash Proceeds received on account any subsection of an Event this Section 2.6 are in addition to payments made or required to be made under any other subsection of Loss so long as such Net Cash Proceeds are applied this Section 2.6.
(g) Each prepayment shall be accompanied by any amount required to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect be paid pursuant to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) aboveSection 2.13; provided that, so long as no Default or Event of Default then existsshall have occurred and be continuing, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be any prepayment is required to make a mandatory prepayment be made under this subsection Section 2.6 on a date other than an Interest Payment Date, in lieu of making any payment pursuant to this Section 2.6 in respect of any such Net Cash Proceeds Loan on a date other than an Interest Payment Date, Debtor may, in its sole discretion, deposit an amount sufficient to make any such prepayment otherwise required to be made hereunder together with accrued interest to the extent next Interest Payment Date into an account held at, and subject to the sole control of, the Administrative Agent until the next Interest Payment Date, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from Debtor or any other Loan Party) to apply such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after amount to the end prepayment of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds Loans in such similar assets, and, to accordance with this Section 2.6. Upon the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay occurrence and during the Obligations in the amount continuance of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition any Default or Event of Loss Default, the Administrative Agent shall also be deposited with Bank authorized (without any further action by or its agent) and held by it in the Collateral Account to be disbursed notice to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof from Debtor or any other terms Loan Party) to apply such amount to the prepayment of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds accordance with the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount relevant provisions of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.32.6.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Advanced Emissions Solutions, Inc.)
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event Not later than the tenth day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andof any Term Loan Priority Collateral Sale, promptly upon receipt by the Borrower or such Subsidiary shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(f); provided that, if (i) the Borrower shall deliver a certificate of a Responsible Officer to the Administrative Agent at the time of receipt thereof setting forth the Borrower’s intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries within 365 days of receipt of such Disposition proceeds, (ii) such proceeds are at all times following the receipt thereof and prior to such reinvestment, held in a depositary account maintained in accordance with Section 5.22 hereof and subject to a Blocked Account Agreement in favor of the Collateral Agent and the ABL Collateral Agent and (iii) no Default or Event of LossDefault shall have occurred and shall be continuing at the time of such certificate or at the proposed time of the application of such proceeds, such proceeds shall not be required to prepay outstanding Loans except to the extent not so used at the end of such 365-day period or committed to be so used at the end of and so used within 180 days after the end of such 365-day period, at which time any such proceeds not so used shall be applied to prepay outstanding Loans in accordance with Section 2.13(f); provided, further, that the Net Cash Proceeds received with respect thereto shall be reinvested (v) such that after giving effect to such reinvestment, the Related Real Estate Collateral shall not constitute more than 45% of the aggregate Value of the Real Estate Collateral Properties and the Related Real Estate Collateral, (w) such that after giving effect to such reinvestment, the owned Real Estate Collateral Properties shall constitute at least 50% of the aggregate Value of the Real Estate Collateral Properties and the Related Real Estate Collateral, (x) to the extent attributable to a Loan Party, in assets of a Loan Party, (y) to the extent attributable to Related Real Estate Collateral or Real Estate Collateral Properties, in Related Real Estate Collateral or Real Estate Collateral Properties and (z) in Term Loan Priority Collateral.
(b) In the event that the Borrower or any Restricted Subsidiary conducts any Other Asset Sale for which the Net Cash Proceeds exceed $5,000,000, then the Borrower shall prepay the Obligations in an aggregate amount equal to apply 100% of the amount Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(f) not later than the tenth day following the receipt of all such Net Cash Proceeds; provided that if (x) so long as the Borrower shall deliver a certificate of a Responsible Officer to the Administrative Agent at the time of receipt thereof setting forth the Borrower’s intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries within 365 days of receipt of such proceeds, (y) such proceeds attributable to Term Loan Priority Collateral are at all times following the receipt thereof and prior to such reinvestment, held in a depositary account maintained in accordance with Section 5.22 hereof and subject to a Blocked Account Agreement in favor of the Collateral Agent and the ABL Collateral Agent and (z) no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore have occurred and shall be continuing at the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice time of such event that Borrower certificate or at the relevant Subsidiary intends to reinvest, within 90 days proposed time of the applicable Dispositionapplication of such proceeds, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower proceeds shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds prepay outstanding Loans except to the extent not so used at the end of such Net Cash Proceeds are actually reinvested in such similar assets with such 90 365-day period. Promptly period or committed to be so used at the end of and so used within 180 days after the end of such 90 365-day period, Borrower at which time any such proceeds not so used shall notify Bank whether Borrower or such Subsidiary has reinvested such be applied to prepay outstanding Loans in accordance with Section 2.13(f); provided, further, that the Net Cash Proceeds in such similar assets, and, received with respect thereto shall be reinvested (v) to the extent attributable to Term Loan Priority Collateral, such Net Cash Proceeds have that after giving effect to such reinvestment, the Related Real Estate Collateral shall not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other constitute more than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 10045% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms aggregate Value of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans Real Estate Collateral Properties and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.Related Real Estate Collateral,
Appears in 1 contract
Mandatory Prepayments. (a) The following amounts shall be applied to prepay the Bridge Loans:
(i) If On the date on which the Borrower or any Wholly-Owned Subsidiary shall receive cash consideration from the sale or issuance of any Equity Interests in the Borrower or any Subsidiary shall at (other than any time such sale or from time issuance in connection with the exercise of options by employees, directors and consultants for cash consideration of up to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to $3,000,000 in any Propertyfiscal year), then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount 100% of the estimated Net Cash Proceeds to net cash proceeds thereof.
(ii) On the date any Indebtedness shall be received issued or incurred by the Borrower or such any Wholly-Owned Subsidiary (excluding any Indebtedness incurred in respect thereof) andaccordance with Section 7.01), promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount net cash proceeds thereof.
(iii) On the date the Borrower or any Wholly-Owned Subsidiary shall receive cash consideration from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect of all any such Net Cash ProceedsRecovery Event, 100% of the net cash proceeds thereof; provided provided, that, notwithstanding the foregoing, (i) the aggregate net cash proceeds of Recovery Events received by the Events Business that (x) so long as no Default or Event of Default then exists, this subsection may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property exceed $500,000 in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (zii) in on each Reinvestment Prepayment Date, an amount equal to the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or Reinvestment Prepayment Amount with respect to the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment Reinvestment Event shall be applied first to toward the outstanding Term prepayment of the Bridge Loans.
(b) Following the payment or prepayment of the Bridge Loans until paid in full and then to full, the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base following amounts shall first be applied to prepay the Revolving Term Loans. If Bank so requests, all proceeds :
(i) On the date on which the Borrower or any Wholly-Owned Subsidiary shall receive cash consideration from the sale or issuance of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it any Equity Interests in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued any such sale or issuance in connection with the exercise of employee stock optionsoptions by employees, Borrower shall promptly notify Bank directors and consultants for cash consideration of up to $3,000,000 in any fiscal year), 50% of the estimated Net Cash Proceeds of such issuance to net cash proceeds thereof.
(ii) On the date any Indebtedness shall be received issued or incurred by or for the account of Borrower or such any Wholly-Owned Subsidiary (excluding any Indebtedness incurred in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceaccordance with Section 7.01), Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsnet cash proceeds thereof.
(iii) If after On the Closing Date date the Borrower or any Wholly-Owned Subsidiary shall issue receive cash consideration from any Indebtedness for Borrowed MoneyAsset Sale or Recovery Event then, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower unless a Reinvestment Notice shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary delivered in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the net cash proceeds thereof; provided, that, notwithstanding the foregoing, (i) the aggregate net cash proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,250,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount of such Net Cash Proceeds. Each such prepayment equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit toward the rights and remedies of Bank for any breach of Section 7.1 or any other terms prepayment of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Jupitermedia Corp)
Mandatory Prepayments. (ia) If Upon receipt by the U.S. Borrower or any Subsidiary shall at of its Subsidiaries of Net Cash Proceeds arising from an Asset Sale in excess of (A) $15,000,000, in the case of any time single Asset Sale or from time to time make or agree to make (B) $30,000,000 in the aggregate for all Asset Sales in any calendar year (excluding any such Asset Sale in respect of which a Disposition or shall suffer an Event of Loss with respect to any Propertymandatory prepayment has previously been made), then the U.S. Borrower shall promptly notify Bank prepay the Term Loans to the extent required in this clause (a); provided that, in the case of such proposed Disposition or Event any Net Cash Proceeds of Loss Asset Sales described in clause (including B) above, only the amount of the estimated such Net Cash Proceeds in excess of $30,000,000 shall be required to prepay the Term Loans. If any prepayment of the Term Loans required to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of made pursuant to this Section 2.10 is made from the Net Cash Proceeds of a Reinvestment Event, the Term Loans shall not be repaid by such Disposition prepayment to the extent of the Reinvestment Deferred Amount of such Reinvestment Event until the Reinvestment Prepayment Date corresponding thereto and, on such Reinvestment Prepayment Date, the Term Loans shall be repaid only to the extent of the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any; provided, that, upon the occurrence of any Default or Event of LossDefault on or before the Reinvestment Prepayment Date corresponding to such Reinvestment Event, Borrower the Term Loans shall prepay be repaid by the Obligations entire Reinvestment AMENDED AND RESTATED CREDIT AGREEMENT FMC CORPORATION Deferred Amount corresponding to such Reinvestment Event; and in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds required to be paid pursuant to clause (A) or clause (B) above; and provided that further, that, to the extent any Net Cash Proceeds on account of any Asset Sale are received by any Non-Guarantor Subsidiary pursuant to the foregoing, only the Net Cash Proceeds actually received by the U.S. Borrower or any Guarantor (xin the form of any payment, dividend, distribution or otherwise) so long as no shall be required to prepay the Loans pursuant to this Section 2.10. Any such mandatory prepayment shall be applied in accordance with clause (b) below. Notwithstanding the foregoing, once the U.S. Borrower obtains an Investment Grade Rating, then the mandatory prepayments required by this clause (a) shall not be in effect.
(b) Subject to the provisions of Section 2.14 (f) (Payments and Computations), any prepayments made by the U.S. Borrower required to be applied in accordance with this clause (b) shall be applied, other than in respect of prepayments made with the Net Cash Proceeds of a Reinvestment Event, on a pro rata basis with respect to each Lender holding an interest in such Loans, to repay the outstanding principal balance of the Term Loans, until such Term Loans shall have been prepaid in full. All repayments of the Term Loans made pursuant to this clause (b) shall be applied to reduce the remaining installments of such outstanding principal amounts of the Term Loans on a pro rata basis.
(c) Upon the receipt by the U.S. Borrower or any of its Subsidiaries of Net Cash Proceeds of a Property Loss Event, the U.S. Borrower shall prepay the Term Loans to the extent required in this clause (c). If any prepayment of the Term Loans required to be made pursuant to this Section 2.10 is made from the Net Cash Proceeds of a Reinvestment Event, the Term Loans shall not be repaid by such prepayment to the extent of the Reinvestment Deferred Amount of such Reinvestment Event until the Reinvestment Prepayment Date corresponding thereto and, on such Reinvestment Prepayment Date, the Term Loans shall be repaid only to the extent of the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any; provided, that, upon the occurrence of any Default or Event of Default then existson or before the Reinvestment Prepayment Date corresponding to such Reinvestment Event, this subsection the Term Loans shall not require be repaid by the entire Reinvestment Deferred Amount corresponding to such Reinvestment Event; and provided further, that, to the extent that any such prepayment with respect to Net Cash Proceeds received on account of an a Property Loss Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documentsreceived by any Non-Guarantor Subsidiary, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, only the Net Cash Proceeds thereof actually received by the U.S. Borrower or a Guarantor (in assets similar the form of any payment, dividend, distribution or otherwise) shall be required to prepay the assets which were subject to such DispositionTerm Loans. Notwithstanding the foregoing, once the U.S. Borrower obtains an Investment Grade Rating, then Borrower the prepayments required by this clause (c) shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyeffect.
(iid) If after the Closing Date Borrower or at any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of time the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which Credit Outstandings exceeds the Revolving Credit Commitment has been so reduced.
(vi) If at any time Commitments, the sum of Borrowers shall forthwith prepay first, the unpaid principal balance of Swing Loans then outstanding, second, the Revolving Loans and the L/C Obligations then outstanding shall be and third, the Competitive Bid Loans then outstanding in an amount equal to such excess. If any such excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid remains after repayment in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total outstanding Swing Loans, Revolving Loans in Euros exceeds and Competitive Bid Loans, the Euro Sublimit, Borrower Borrowers shall immediately and without notice or demand pay over provide cash collateral for the amount Sub-Facility Letter of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, Credit Obligations in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under manner set forth in Section 3.3.9.3 (
Appears in 1 contract
Sources: Credit Agreement (FMC Corp)
Mandatory Prepayments. (ia) If any Indebtedness shall be incurred by the Borrower or after the Closing Date (other than any Subsidiary permitted Indebtedness incurred in accordance with Section 7.2 (except for Credit Agreement Refinancing Indebtedness which shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss be applied in accordance with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss clause (including the amount iii) of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect definition thereof) and)), promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Cash Proceeds thereof shall be applied on the date of all such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.11(d).
(b) If on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, the Applicable Asset Sale Prepayment Percentage of such Net Cash Proceeds shall be applied by the Borrower on the fifth Business Day following such receipt thereof toward the prepayment of the Term Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, at the option of the Company, the Company may reinvest the Net Cash Proceeds in the business of the Company or any of its Subsidiaries within (x) 12 months following the receipt of such Net Cash Proceeds or (y) 18 months following the receipt of such Net Cash Proceeds; provided , in the event that (x) so long as no Default the Company or Event any of Default then exists, this subsection its Subsidiaries shall not require any have entered into a binding commitment within 12 months following the receipt of such prepayment with respect to Net Cash Proceeds received on account to reinvest such Net Cash Proceeds in the business of an Event the Company or any of Loss so long as its Subsidiaries (it being understood that if any portion of such Net Cash Proceeds are no longer intended to be reinvested or are not reinvested within such 18-month period, the Applicable Asset Sale Prepayment Percentage of such Net Cash Proceeds shall be applied by the Borrower on the fifth Business Day after the Company reasonably determines that such Net Cash Proceeds are no longer intended to replace be or restore are not reinvested within such 18-month period toward prepayment of the relevant Property Term Loans as set forth in Section 2.11(d)); provided that if at the time that any such prepayment would be required, the Company or any of its Subsidiaries is required to prepay or offer to repurchase with the Net Cash Proceeds of such Asset Sale or Recovery Event any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with the Liens securing the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be offered to be so repurchased, “Other Applicable Asset Sale Indebtedness”), then the Company may apply the Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Asset Sale Indebtedness at such time) to the prepayment of such Other Applicable Asset Sale Indebtedness; it being understood that the portion of the Net Cash Proceeds allocated to the Other Applicable Asset Sale Indebtedness shall not exceed the amount of the Net Cash Proceeds required to be allocated to the Other Applicable Asset Sale Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Net Cash Proceeds shall be allocated to the Term Loans in accordance with the relevant terms hereof), and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b) shall be reduced accordingly.
(c) No later than the fifth Business Day after the date on which the financial statements with respect to each fiscal year of the Borrower are required to be delivered pursuant to Section 6.1(a), commencing with the fiscal year ending December 31, 2022, the Borrower shall prepay Term Loans in accordance with Section 2.11(d) in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Applicable ECF Prepayment Percentage of Excess Cash Flow of the Company and its Subsidiaries for the Excess Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment Amount”) minus (B) at the option of the Borrower, to the extent occurring during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period or deducted in the calculation of Excess Cash Flow pursuant to the definition thereof), the following (collectively, the “ECF Deductions”):
(i) the aggregate principal amount of any Term Loans prepaid pursuant to Section 2.10;
(ii) the aggregate principal amount of any Incremental Equivalent Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 7.2 to the extent secured by Liens on the Collateral Documentsthat are pari passu with the Liens on the Collateral securing the Facilities (without regard to the control of remedies), voluntarily prepaid, repurchased, redeemed or otherwise retired;
(iii) the amount of any reduction in the outstanding amount of any Term Loans, Incremental Equivalent Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 7.2 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Facilities (without regard to the control of remedies), resulting from any purchase or assignment made in accordance with Section 10.6(k) (with respect to Term Loans) and any equivalent provisions with respect to any Incremental Equivalent Debt and/or such other Indebtedness;
(iv) all Cash payments in respect of Capital Expenditures and all Cash payments made to acquire IP Rights;
(v) Cash payments by the Company and its Subsidiaries made in respect of long-term liabilities (including for purposes of clarity, the current portion of such long-term liabilities) of the Company and its Subsidiaries other than Indebtedness, except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated EBITDA for such period;
(vi) Cash payments made from internally generated Cash in respect of any Investment (including acquisitions) permitted by Section 7.7 or otherwise consented to by the Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted Payment permitted by Section 7.7 or otherwise consented to by the Required Lenders;
(vii) the aggregate consideration (A) required to be paid in Cash by the Borrower or its Subsidiaries pursuant to binding contracts entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section 7.7 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (vi) above and/or (B) otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or other Investments and/or Restricted Payments described in clause (vi) above (clauses (A) and (B) of this subsection clause (vii), the “Scheduled Consideration”) (other than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such Excess Cash Flow Period; provided that to the extent the aggregate amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent period of four consecutive fiscal quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of the ECF Prepayment Amount at the end of such subsequent period of four consecutive fiscal quarters;
(viii) Cash expenditures in respect of any Hedge Agreement to the extent not require otherwise deducted in the calculation of Consolidated Net Income or Consolidated EBITDA; and
(ix) the aggregate amount of expenditures actually made by the Borrower and/or any Subsidiary in Cash (including any expenditure for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including this Agreement, and including, in each case, any such prepayment with respect transaction consummated prior to, on or after the Closing Date, and Charges incurred in connection therewith, whether or not such transaction was successful), in each case to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower the extent that such expenditures were not exceeding $250,000 expensed; in the aggregate so long as no Default or Event case of Default then existseach of clauses (i)-(ix), (I) excluding any such payments, prepayments and expenditures made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(c) in any prior Fiscal Year, (zII) in the case of any Disposition prepayment of revolving Indebtedness, to the extent accompanied by a permanent reduction in the relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not covered by financed with the proceeds of other Long-Term Indebtedness of the Borrower or its Subsidiaries and (IV) in each case under clause (y3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided that no prepayment under this Section 2.11(c) shall be required unless the principal amount of Term Loans required to be prepaid exceeds $10,000,000 (and, in such case, only such amount in excess of such amount shall be required to be prepaid); provided, further, that if at the time that any such prepayment would be required, the Borrower or any of its Subsidiaries is required to prepay or offer to repurchase with any portion of the ECF Prepayment Amount Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured on a pari passu basis (without regard to the control of remedies) with the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so long as no Default prepaid or Event offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such portion of Default then existsthe ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time) to the prepayment of the Term Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(c) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if Borrower states in its notice any, of such event that Borrower or ECF Prepayment Amount shall be allocated to the relevant Subsidiary intends Term Loans in accordance with the terms hereof and (2) to reinvest, within 90 days the extent the holders of the applicable DispositionOther Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(d) The application of any prepayment pursuant to Section 2.11(a), 2.11(b) or 2.11(c) shall be made ratably to the Term Loans based on the outstanding respective principal amounts thereof. Partial prepayments of the Term Loans pursuant to this Section 2.11 shall be applied to the remaining installments thereof, as directed by the Borrower (and absent any direction in the direct order of maturity). The application of any prepayment of Term Loans pursuant to this Section 2.13 shall be made, first, to ABR Loans and second, to LIBO Rate Loans. Each prepayment of the Loans under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b) or (c) to decline all (but not a portion) of its prepayment (such declined amounts, the “Declined Proceeds”), which Declined Proceeds may be retained by the Borrower and used for any purpose permitted (or not prohibited) hereunder, including to increase the Available Amount; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(a) above to the extent that such prepayment is made with the proceeds of any Credit Agreement Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans. If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its ratable percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s ratable percentage of the total amount of such mandatory prepayment of the Term Loans.
(f) Notwithstanding any other provisions of Section 2.11, to the extent any or all of the Net Cash Proceeds thereof from any Asset Sale or Recovery Event received by the Company or a Foreign Subsidiary are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of the Company or such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary (the Company hereby agreeing to promptly take, and to cause the applicable Foreign Subsidiary to promptly take, all actions reasonably required by the applicable local law to permit such repatriation as long as such repatriation does not create a material adverse tax consequence) or if the Company has determined in assets similar good faith that repatriation of any such amount to the assets which were subject Borrower or any applicable Subsidiary would have material adverse tax consequences with respect to such Dispositionamount, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect the portion of such Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.11 but may be retained by the Company or the applicable Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Company believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law or the Company determines in good faith that such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the extent prepayment of the applicable Term Loans as otherwise required pursuant to this Section 2.11; provided that, notwithstanding the foregoing, the Borrower and the applicable Domestic Subsidiary shall have no obligation to repatriate any such Net Cash Proceeds are actually reinvested in such similar assets (or take any further action with such 90 day period. Promptly respect thereto) from and after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided date that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If is twelve months after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Taboola.com Ltd.)
Mandatory Prepayments. (i) If In the event of the sale or issuance by any Borrower or any Subsidiary of its Subsidiaries of any Capital Stock (or any similar related instrument) (other than in connection with the Restructuring so long as shares of Capital Stock are issued only to Owners or Borrowers existing on the date of this Agreement) or the incurrence of any Indebtedness by any Borrower or any of its Subsidiaries (other than the Loans hereunder), immediately thereupon the Borrowers shall at any time prepay the Loans in an amount equal to the proceeds (net of expenses of sale, issuance or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank incurrence) of such proposed Disposition sale, issuance or Event incurrence, together with all accrued and unpaid interest on the principal amount on the Loans being repaid through the date of Loss prepayment and any Breakage Costs applicable thereto.
(including ii) In the amount event of the estimated Net Cash Proceeds occurrence of an Asset Sale, immediately thereupon the Borrowers shall prepay the Loans in an amount equal to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event Asset Sale, together with all accrued and unpaid interest on the principal amount on the Loans being repaid through the date of Lossprepayment and any Breakage Costs applicable thereto; provided, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided however, that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each -------- ------- such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated required only if Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of from any Asset Sale exceed $250,000 (it being understood that if Net Cash Proceeds of such issuanceexceed $250,000, Borrower shall the entire amount thereof must be used to prepay the Obligations in an aggregate amount equal to 100% of Loans, not just the amount in excess of such $250,000) when aggregated with Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit Proceeds from other Asset Sales since the rights and remedies date of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsthis Agreement.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, Borrowers are required to prepay the Loans on a day other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank on the last day of the estimated Net Cash Proceeds applicable Interest Period, the Borrowers shall not be obligated for any Breakage Costs in connection therewith if (x) the Borrowers irrevocably deposit in escrow with the Agent cash or securities issued by the United States or a combination thereof in amounts (including interest, but without consideration of any reinvestment of such issuance interest) and with maturities sufficient to be received by or for pay and discharge on such last day of an applicable Interest Period the account principal of Borrower or and interest on such Subsidiary in respect thereof. Promptly upon receipt by Borrower or Loans, (y) (to the extent that the Borrowers deposit securities) the Borrowers deliver to the Agent a certificate from a nationally recognized firm of independent accountants expressing its opinion that such Subsidiary of Net Cash Proceeds of deposited cash and/or securities will provide cash at such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied times and in such amounts as will be sufficient to pay the principal of and interest on such Loans due on such last day of the applicable Interest Period, and (z) on such last day of the applicable Interest Period such cash and/or securities have a value sufficient to pay in full the principal of and interest on such Loans. The Agent shall apply all amounts so deposited with it, as appropriate, to such Obligations as agreed to by Borrower prepayment and Bank. Borrower acknowledges that its performance hereunder shall not limit payment on the rights and remedies of Bank for any breach of Section 7.1 or any other terms last day of the Loan Documents.
applicable Interest Period. The Borrowers will cause the Agent to have (iv) If after for the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank benefit of the estimated Net Cash Proceeds of Lenders) a First Priority Lien on any such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts cash and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentssecurities.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Cais Internet Inc)
Mandatory Prepayments. (a) If, on any date, the aggregate unpaid principal amount of all Revolving Loans then outstanding shall exceed the Aggregate Revolving Commitment then in effect, the Borrower shall immediately prepay principal of the Revolving Loans in the amount of such excess.
(i) If on any date the Parent Company, the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Subsidiary Guarantors shall receive Net Cash Proceeds to be received by Borrower from any Asset Sale or such Subsidiary in respect thereof) andRecovery Event, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in then an aggregate amount equal to 100% of the amount Net Cash Proceeds from such Asset Sale or Recovery Event shall be applied, not later than ninety (90) days (or, if any Event of Default shall then be continuing, one (1) Business Day) after the date of such Reinvestment Event, to prepay principal of the outstanding Loans, all as provided by Section 2.6(e); provided, however, that the Parent Company, the Borrower and the Subsidiary Guarantors shall be required to apply Net Cash Proceeds received from any Asset Sale or Recovery Event towards prepayment of principal as provided above only (A) if any Event of Default shall be continuing at the time of the receipt of such Net Cash Proceeds; provided , or (B) if and to the extent that (x) so long as no Default or Event such Net Cash Proceeds, when added to the aggregate amount of Default then exists, this subsection shall not require any such prepayment with respect to all other Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace from Asset Sales or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 Recovery Events in the aggregate so long as no Default or Event of Default then existssame Fiscal Year, shall exceed $500,000; and (z) provided, further, that the requirements for mandatory prepayment set forth above in the case of any Disposition not covered by this clause (yi) above, so long as no Default or Event of Default then exists, shall be reduced if Borrower states in its notice of such event and to the extent that the Borrower or the relevant Subsidiary intends Parent Company elects, as hereinafter provided, to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect cause all or any part of such Net Cash Proceeds to be reinvested by the extent such Net Cash Proceeds are actually reinvested Borrower or by one or more of the Subsidiary Guarantors in such similar assets with such 90 day period. Promptly after Reinvestment Assets on or prior to the end of such 90 day period, Borrower shall notify Bank whether the applicable Reinvestment Period (herein called a “Reinvestment Election”). The Borrower or the Parent Company may exercise the Reinvestment Election with respect to any Asset Sale or Recovery Event only if (1) no Event of Default shall be continuing at the time of such Subsidiary has reinvested Asset Sale or Recovery Event, and (2) the Borrower or the Parent Company delivers a Reinvestment Notice with respect to such Net Cash Proceeds in such similar assets, and, Asset Sale or Recovery Event to the extent such Net Cash Proceeds have Administrative Agent not been so reinvested, Borrower shall promptly prepay later than ninety (90) days after the Obligations in the amount date of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertyReinvestment Event.
(ii) If after the Closing Date Parent Company, the Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Subsidiary Guarantors shall at any time receive Net Cash Issuance Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancefrom any Financing Event, Borrower shall prepay the Obligations in then an aggregate amount equal to 100% of the amount of Net Issuance Proceeds from such Net Cash Proceeds. Each such prepayment Financing Event shall be applied in such amounts within two (2) Business Days after receipt to prepay principal of the outstanding Loans, all as provided by Section 2.6(e); provided, however, that, unless any Event of Default shall then be continuing, the Parent Company, the Borrower and the Subsidiary Guarantors shall be required to apply Net Issuance Proceeds received from any issuance and sale by the Parent Company of its Permitted Equity Interests towards prepayment of principal as provided above only if and to the extent that such Obligations as agreed Net Issuance Proceeds, when added to the aggregate amount of all other Net Issuance Proceeds received from any issuance and sale by Borrower and Bank. Borrower acknowledges that the Parent Company of its performance hereunder Permitted Equity Interests in the same Fiscal Year, shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documentsexceed $1,000,000.
(iii) If after the Closing Date Borrower Nothing in this paragraph (b) shall be construed as a consent for, or be deemed to permit, any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly Asset Sale or Financing Event not otherwise permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsthis Agreement.
(iv) If after On the Closing Reinvestment Prepayment Date Borrower or with respect to any Subsidiary shall issue any Subordinated DebtReinvestment Election made pursuant to clause (i), Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100the Reinvestment Prepayment Amount, if any, for such Reinvestment Election shall be applied as a mandatory prepayment of principal of the outstanding Loans, all as provided by Section 2.6(e).
(c) On each of the Excess Cash Flow Application Dates applicable to Fiscal Years 2006 and thereafter, an amount equal to 50% of the amount of such Net Consolidated Excess Cash Proceeds. Each such prepayment Flow for the Fiscal Year last ended shall be applied in such as a mandatory prepayment of principal of the outstanding Loans, all as provided by Section 2.6(e).
(d) With respect to Eurodollar Rate Loans, the Borrower shall pay, together with each principal prepayment under this Section 2.6, accrued interest on the amount prepaid and any amounts and required pursuant to such Obligations as agreed Section 2.5(c) or Section 3.5. Any prepayments pursuant to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank this Section 2.6 made on any day other than an Interest Payment Date for any breach Loan shall be applied: first, to any Base Rate Loans then outstanding; and, then, to Eurodollar Rate Loans with the shortest Interest Periods remaining; provided, however, that, so long as no Event of Section 7.1 or any other terms Default shall then be continuing, the Administrative Agent shall, upon the request of the Loan Borrower, apply any such prepayments to Eurodollar Rate Loans only on the last day of each of the respective Interest Periods relating thereto, and, until such application of any such prepayments, the Administrative Agent shall hold the amount thereof as cash Collateral for the Obligations upon the terms contained in the Collateral Documents.
(ve) Borrower shall, on each date Each prepayment of principal of the Revolving Credit Commitment is reduced outstanding Loans required pursuant to Section 2.132.6(b) or 2.6(c) shall be applied: first, prepay towards payment of unpaid principal of the Term Loans, until the entire unpaid principal of each of the Term Loans shall have been paid in full; and, second, towards payment of unpaid principal of the Revolving Loans, until the entire unpaid principal of each of the Revolving Loans is paid in full; and, if necessarythird, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum towards payment of all of the aggregate principal amount other Obligations of Revolving Loans and L/C the Principal Companies under the Loan Documents, until all of such Obligations then outstanding to the amount to which the Revolving Credit Commitment has shall have been so reducedpaid in full.
(vif) If at any time Each prepayment of principal of the sum outstanding Term Loans required pursuant to Section 2.6(b), 2.6(c) or 2.6(e) shall be applied to the remaining scheduled installments of the Term Loans pursuant to Section 2.7(b) pro rata (based on the principal amount then remaining unpaid of each of the scheduled installments of the Term Loans).
(g) With respect to the Type of Loan to be prepaid, each prepayment required pursuant to this Section 2.6 shall, subject always to Section 2.6(e), be applied, first, towards payment of the unpaid principal balance of each Base Rate Loan, until the Revolving Loans and the L/C Obligations then outstanding shall be in excess entire principal of each of the Borrowing Base as then determined and computed, Borrower Rate Loans shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until have been paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimitfull, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligationsand, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directssecond, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the towards payment of the unpaid principal amount to be prepaid andbalance of each Eurodollar Rate Loan, until the entire principal of each of the Eurodollar Rate Loans shall have been paid in the case of any Term Loansfull, accrued interest thereon each in a manner which minimizes to the date of prepayment together with extent reasonably possible any amounts due Bank payable by the Borrower under Section 3.33.5.
Appears in 1 contract
Mandatory Prepayments. (ia) If Until the Term Loans have been repaid in full and the Tranche B Term Loan Commitments terminated, if any Capital Stock shall be issued by the Borrower (except any Excluded Equity Issuance) or if any Subsidiary shall at any time or from time proceeds of an Excluded Equity Issuance required to time make or agree to make be used for a Disposition or shall suffer an Event Permitted Acquisition are not so used within 90 days of Loss with respect to any Propertythe issuance thereof, then Borrower shall promptly notify Bank on the date of such proposed Disposition issuance (or Event such 90th day, as applicable), the Term Loans shall be prepaid by an amount equal to 50% of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition issuance or Event such proceeds. If any Indebtedness shall be incurred by the Borrower or any of Lossits Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.2 (except as set forth in Section 7.2(f)(ii)) as in effect on the date of this Agreement), Borrower then on the date of such incurrence, the Term Loans shall prepay the Obligations in be prepaid by an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such incurrence. The provisions of this Section do not constitute a consent to the issuance of any equity securities by any entity whose equity securities are pledged pursuant to be received the Guarantee and Collateral Agreement, or a consent to the incurrence of any Indebtedness by or for the account of Borrower or such Subsidiary any of its Subsidiaries.
(b) Until the Term Loans have been repaid in full and the Tranche B Term Loan Commitments terminated, if on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof. Promptly upon , within 10 Business Days of receipt by the Borrower or of such Subsidiary of Net Cash Proceeds of such issuanceProceeds, Borrower the Term Loans shall prepay the Obligations in be prepaid by an aggregate amount equal to 100% of the amount of such Net Cash Proceeds; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Term Loans shall be prepaid, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event. The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.5.
(c) Until the Term Loans have been repaid in full and the Tranche B Term Loan Commitments terminated, if for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2006, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Term Loans shall be prepaid by an amount equal to the ECF Percentage of such Excess Cash Flow. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit made on a date (an “Excess Cash Flow Application Date”) no later than five days after the rights and remedies earlier of Bank for any breach of Section 7.5 (Maintenance of Subsidiariesi) or Section 8.1(i) (Change of Control) hereof or any other terms the date on which the financial statements of the Loan Documents.
(iii) If after Borrower referred to in Section 6.1(a), for the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneyfiscal year with respect to which such prepayment is made, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance are required to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding delivered to the amount to which the Revolving Credit Commitment has been so reduced.
Lenders and (viii) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3such financial statements are actually delivered.
Appears in 1 contract
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 500,000.00 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 120 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 120-day period. Promptly after the end of such 90 120-day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property. If after the Closing Date Borrower or any Subsidiary shall issue new equity ‑22‑ DOCPROPERTY "CUS_DocIDChunk0" 4902-4014-4389\11 securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.(5) (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in such amounts full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in such amounts full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in such amounts full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Loans. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.‑23‑ DOCPROPERTY "CUS_DocIDChunk0" 4902-4014-4389\11
Appears in 1 contract
Mandatory Prepayments. (ia) If Borrower Subject to clauses (c) and (d) below, on each occasion that the Company or any Subsidiary shall at receives any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereofof any Prepayment Event, the Company shall promptly (and in any event within five Business Days) and, promptly upon receipt by Borrower or such Subsidiary apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans, it being agreed that to the extent no Term Loans are then outstanding at such time, to the extent any Revolving Loans are outstanding on such date, the Borrowers shall prepay Revolving Loans with such Net Cash Proceeds on such date). Subject to clause (b) below, each prepayment of outstanding Loans required to be made pursuant to this paragraph shall be allocated pro rata between the Term Loans (including the Other Term Loans (if any)) or if applicable, Revolving Loans and, in the case of Term Loans, applied against the remaining scheduled installments of principal due in respect of the Term Loans, including (unless otherwise specified in the applicable Incremental Assumption Agreement) the Other Term Loans (if any) as directed by the Company.
(b) The Company shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to Section 6.2.4 at least three Business Days prior to the date of such Disposition or Event prepayment. Each such notice shall specify the date of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender holding Loans of the contents of the Company’s prepayment notice and of such Lender’s pro rata share of the prepayment. Each Lender may reject all or a portion of its pro rata share of any mandatory prepayment (such declined amounts, the “Declined Proceeds” and such rejecting Lenders, the “Declining Proceeds Lenders”) of Loans required to be made pursuant to Section 6.2.4(a) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 4:00 p.m. (New York City time) one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans. Any Declined Proceeds remaining thereafter, first, if there are Term Loans outstanding, shall be offered to the Term Lenders (other than any Declining Proceeds Lender) on a pro rata basis (based on their outstanding Term Loans), which Term Lenders may reject all or a portion of their pro rata shares of such Declined Proceeds, second, shall be offered to the Revolving Lenders (other than any Declining Proceeds Lender) on a pro rata basis (based on their outstanding Revolving Commitments), which Revolving Lenders may reject all or a portion of their pro rata shares of such remaining Declined Proceeds, and, third, to the extent any Declined Proceeds remain thereafter, shall not be subject to mandatory prepayment hereunder.
(c) Notwithstanding clause (a) above, if (x) the Company shall deliver a certificate of an Executive Officer to the Administrative Agent at or promptly following the time of receipt of any amount that would otherwise constitute Net Cash Proceeds of an Asset Sale setting forth the Company’s intent to reinvest such proceeds in productive assets or businesses within 365 days of receipt of such proceeds (the “Investment Period”) and (y) no Event of Default shall have occurred and shall be continuing at the time of the delivery of such certificate, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such Investment Period (or, if the Company commits to reinvest such proceeds within such Investment Period, within 180 days of the end of such Investment Period), at which time such proceeds shall be deemed to be Net Cash Proceeds; provided that .
(xd) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower The Company shall not be required to make a mandatory prepayment prepay by any amount that would otherwise be required pursuant to clause (a) above to the extent (i) the relevant Net Cash Proceeds are generated by any Foreign Subsidiary and the repatriation to the Company of any such Net Cash Proceeds would be prohibited, restricted or delayed under this subsection in respect any applicable law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors or officers or (ii) the relevant Net Cash Proceeds are generated by any Foreign Subsidiary and the repatriation of such Net Cash Proceeds to the extent Company would result in adverse tax consequences as reasonably determined by the Company; provided that upon the Company obtaining knowledge that such circumstance in clause (i) and/or clause (ii), as applicable, ceases to apply, such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full deemed received for purposes of clause (a) above and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition any prepayment or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyreduction requirements applicable thereto.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Regal Beloit Corp)
Mandatory Prepayments. (ia) If Upon receipt by the Borrower or any Subsidiary of its Subsidiaries of Net Cash Proceeds arising from any Disposition, Involuntary Disposition, Debt Issuance or Equity Issuance or (ii) without duplication, Extraordinary Receipts, in each case, the Borrower shall at immediately prepay without notice the Loans in an amount equal to 100% of such Net Cash Proceeds; provided, however, that:
(A) in the case of any time or Net Cash Proceeds arising from time to time make or agree to make a any (I) Disposition or (II) Involuntary Disposition, (X) if the Borrower shall suffer an Event of Loss have delivered a Reinvestment Notice with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds Proceeds, no prepayment shall be required under this Section 2.08(a) with respect to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Reinvestment Event of Lossuntil the applicable Reinvestment Prepayment Date and (Y) on the applicable Reinvestment Prepayment Date, the Borrower shall prepay the Obligations Loans in an aggregate amount equal to 100% of the amount of all Reinvestment Prepayment Amount applicable to such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then existsReinvestment Event, this subsection shall not require any such prepayment if any, on the Reinvestment Prepayment Date with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are Reinvestment Event, which mandatory prepayment shall be applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (yc) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or below;
(B) the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under pursuant to this subsection Section 2.08(a) with the Net Cash Proceeds arising from the Disposition or Involuntary Disposition of any Property that is subject to (I) a HUD Financing or (II) other Indebtedness that is secured by a Lien on such Property, in respect of each case to the extent that the Borrower or the applicable Subsidiary is required pursuant to the documentation governing such HUD Financing or other Indebtedness to apply such Net Cash Proceeds to prepay such HUD Financing or other Indebtedness; and
(C) nothing in this Section 2.08 shall be construed to permit (or be a consent to) the extent issuance or incurrence of any Indebtedness or Equity Securities, the Disposition of any Property or the Involuntary Disposition of any Property that is not, in any such case, otherwise permitted by this Agreement.
(b) Notwithstanding anything in this Section 2.08 to the contrary, the amount of Net Cash Proceeds arising from any Disposition, Involuntary Disposition or Extraordinary Receipts that the Borrower is required to apply in prepayment of the Loans pursuant to this Section 2.08 shall be deemed reduced by the amount thereof that the Borrower is required to apply in mandatory prepayment of the Senior Secured Credit Facilities pursuant to the terms of the Senior Secured Credit Agreement.
(c) Notwithstanding anything in this Section 2.08 to the contrary, if, on the date that any applicable amount of Net Cash Proceeds are actually reinvested required to be applied in mandatory prepayment of the Loans pursuant this Section 2.08, any Exchange Securities have been issued and are outstanding, such similar assets with such 90 day period. Promptly after amount of Net Cash Proceeds shall be applied as follows: (x) if Floating Rate Exchange Securities are then outstanding but no Fixed Rate Exchange Securities are then outstanding, the end Loans shall be prepaid and (to the extent required by the Exchange Indenture) the Floating Rate Exchange Securities shall be redeemed (at par plus accrued and unpaid interest), on a pro rata basis; and (y) if any Fixed Rate Exchange Securities are then outstanding: (A) the Borrower shall immediately notify the Administrative Agent of the receipt of applicable Net Cash Proceeds and the amount thereof which is required to be applied, on a pro rata basis, in mandatory prepayment of the Loans, in mandatory redemption of any Floating Rate Exchange Securities (at par plus accrued and unpaid interest) and in making mandatory offers to purchase any Fixed Rate Exchange Securities (at par plus accrued and unpaid interest plus any applicable premium), (B) not later than five Business Days following the date of such 90 day periodnotice to the Administrative Agent, the Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds the Administrative Agent of the respective pro rata allocated amounts of the Loans, any Floating Rate Exchange Securities and any Fixed Rate Exchange Securities which are required to be purchased pursuant to accepted offers to purchase made as provided in such similar assetsclause (A) above, andand (C) not later than five Business Days following the date of the notice delivered pursuant to clause (B) above, the Loans shall be prepaid in the applicable pro rata allocated amount thereof referred to in clause (B) above. Notwithstanding anything in this clause (c) to the extent contrary, on or prior to the date such Net Cash Proceeds have not been so reinvestedoffer to purchase is required to be made pursuant to this clause (c), Borrower shall promptly prepay any holder of Fixed Rate Exchange Securities may refuse to accept such offer by a written notice to the Obligations in Administrative Agent delivered no later than 5:00 p.m. (New York time) two Business Days after receipt of notice from the amount of Administrative Agent that such offer to purchase is to be made and any Net Cash Proceeds not so reinvested. The amount accepted by holders of each such prepayment the Fixed Rate Exchange Securities shall be applied first to the repay any additional outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reducedFloating Rate Exchange Securities on a pro rata basis.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Senior Unsecured Term Loan Agreement (Psychiatric Solutions Inc)
Mandatory Prepayments. (i) If Promptly, and in any event within fifteen (15) days after receipt by Borrower or Quail Tools of any Subsidiary shall at any time or from time Net Cash Proceeds pursuant to time make or agree to make a Disposition or shall suffer clause (a) of the definition of “Net Cash Proceeds” (each, an “Event of Loss with respect to any PropertyLoss”), then Borrower shall promptly notify Bank prepay the Loan in an amount equal to 100% of such proposed Disposition Net Cash Proceeds (whether in the form of insurance proceeds, condemnation awards or otherwise); provided that, so long as (v) no Default or Event of Loss Default shall have occurred and be continuing or would result therefrom, (including the amount w) Borrower shall have given Lender prior written notice of the estimated Borrower’s or Quail Tools’ intention to apply such Net Cash Proceeds to be received by the costs of replacement of the properties or assets that are the subject of such Event of Loss or the cost of purchase or construction of other assets useful in the business of Borrower or Quail Tools, (x) the Net Cash Proceeds are held in a deposit account in which Lender has a perfected, first-priority security interest, and (y) Borrower or Quail Tools completes such Subsidiary replacement, purchase or construction within ninety (90) days after the initial receipt of such Net Cash Proceeds, Borrower shall have the option to apply such Net Cash Proceeds to the costs of replacement of the assets that are the subject of such Event of Loss or the costs of purchase or construction of other assets useful in respect thereofthe business of Borrower. However, if the applicable time period set forth in the foregoing clause (y) andexpires without such replacement, promptly upon purchase or construction being made or completed, then any such Net Cash Proceeds not used for a purpose in clause (w) above shall be paid to Lender and applied in prepayment of the Loan in accordance with Section 3.2(b)(iv).
(ii) Promptly, and in any event within fifteen (15) days after receipt by Borrower or such Subsidiary of the Net Cash Proceeds (or, if earlier, upon its determination not to apply such Net Cash Proceeds to the acquisition of such Disposition assets used or Event useable in the business of LossBorrower and Quail Tools) pursuant to clause (b) of the definition of “Net Cash Proceeds” (each, an “Asset Sale”), Borrower shall will prepay the Obligations outstanding principal amount of the Loan in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds from such transaction; provided that (x) that, so long as (v) no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace have occurred and be continuing or restore the relevant Property in accordance with the relevant Collateral Documentswould result therefrom, (yw) this subsection Borrower shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its have given Lender prior written notice of such event that Borrower Borrower’s or the relevant Subsidiary intends Quail Tools’ intention to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of apply such Net Cash Proceeds to the extent costs of replacement of the properties or assets that are the subject of such Asset Sale, or the cost of purchase or construction of other assets useful in the business of Borrower or Quail Tools, (x) the Net Cash Proceeds are held in a deposit account in which Lender has a perfected, first-priority security interest, and (y) Borrower or Quail Tools completes such replacement, purchase or construction within ninety (90) days after the initial receipt of such Net Cash Proceeds, Borrower shall have the option to apply such Net Cash Proceeds to the costs of replacement of the assets that are actually reinvested in such similar assets with such 90 day period. Promptly after the end subject of such 90 day period, Borrower shall notify Bank whether Asset Sale or the costs of purchase or construction of other assets useful in the business of Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assetsQuail Tools. However, and, to if the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations applicable time period set forth in the amount of foregoing clause (y) expires without such replacement, purchase or construction being made or completed, any such Net Cash Proceeds not so reinvested. The amount of each such prepayment used for a purpose in clause (w) above shall be paid to Lender and applied first to in prepayment of the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertyLoan.
(iiiii) If Promptly, and in any event within five (5) days after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank date of the estimated receipt of any Net Cash Proceeds pursuant to clause (c) of such issuance to be received by or for the account definition of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of “Net Cash Proceeds Proceeds”, from the incurrence by Holdings or any of its Subsidiaries of any Debt for borrowed money after the date hereof (other than (A) Debt permitted under Section 8.1, (B) purchase money Debt not to exceed $20,000,000 in the aggregate for all such issuancePersons over the term of this Agreement, (C) Debt incurred to finance an acquisition not to exceed $50,000,000 in the aggregate for all such Persons over the term of this Agreement, and (D) advances made under the Existing Revolver), Borrower shall prepay the Obligations outstanding principal amount of the Loan in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of from such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentstransaction.
(iv) If after the Closing Date Borrower or any Subsidiary Each prepayment of Loan under clauses (i), (ii) and (iii) of this Section 3.2(b) shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid remaining scheduled amortization payments of the Loan in full with any remaining balance inverse order of maturity. The provisions of this Section 3.2(b) shall not be deemed to be applied implied consent to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided events that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made are prohibited by the payment terms of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3this Agreement.
Appears in 1 contract
Sources: Seller Note and Security Agreement (Nabors Industries LTD)
Mandatory Prepayments. (i) If Borrower [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $15,000,000 in any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any PropertyFiscal Year, then the Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of all such Net Cash ProceedsTerm Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (xA) so long as no Default or Event of Default then exists, this subsection shall the Borrower does not require notify the Administrative Agent in writing prior to the date any such prepayment with respect is required to Net Cash be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default business (other than Cash or Event Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvestany of its Restricted Subsidiaries, within 90 days of the applicable Dispositionthen, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection clause (ii) in respect of such Net Cash the Subject Proceeds to the extent such Net Cash (x) the Subject Proceeds are actually so reinvested in within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such similar assets with such 90 day period. Promptly 18 month period and the Subject Proceeds are so reinvested within 180 days after the end expiration of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to 18 month period (it being understood that if the extent such Net Cash Subject Proceeds have not been so reinvestedreinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Obligations in Subject Loans with the amount of such Net Cash Subject Proceeds not so reinvested. The reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of each Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)) and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be applied first allocated to the outstanding Term Subject Loans until paid in full accordance with the terms hereof, and then the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the Revolving Loans; provided that proceeds relating extent the holders of the Other Applicable Indebtedness decline to Eligible Inventory have such Indebtedness Prepaid, the declined amount shall promptly (and Eligible Receivables then included in any event within ten Business Days after the Borrowing Base shall first date of such rejection) be applied to prepay the Revolving LoansSubject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). If Bank so requestsNotwithstanding the foregoing, all proceeds (x) the Net Proceeds Percentage shall be 50.0% if the Senior Debt to Total Assets Ratio for the Test Period most recently ended prior to the date of such Disposition required prepayment is less than or Event equal to 70.0% and greater than 64.5% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of Loss 100.0%), (y) the Net Proceeds Percentage shall be deposited 25.0% if the Senior Debt to Total Assets Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 64.5% and greater than 60.0% (with Bank (or its agentthe Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 50.0%) and held by it in (z) the Collateral Account Net Proceeds Percentage shall be 0.0% if the Senior Debt to be disbursed to or at Borrower’s direction for application to or reimbursement Total Assets Ratio for the costs Test Period most recently ended prior to the date of replacing, rebuilding such required prepayment is less than or restoring equal to 60.0% (with the Net Proceeds Percentage being calculated after giving pro forma effect to such Propertyprepayment at a rate of 25.0%).
(iiiii) If after In the Closing Date event that the Borrower or any Subsidiary shall issue new equity securities of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (whether common other than Indebtedness that is permitted to be incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or preferred stock or otherwisea portion of any Class of Term Loans pursuant to Section 6.01(p), other than equity securities issued (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in connection accordance with the exercise requirements of employee stock optionsSection 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall shall, promptly notify Bank of upon (and in any event not later than two Business Days thereafter) the estimated Net Cash Proceeds receipt thereof of such issuance to be received Net Proceeds by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceits applicable Restricted Subsidiary, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of such Net Cash Proceeds. Each such prepayment shall be applied the relevant Class or Classes of Term Loans in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 accordance with clause (Maintenance of Subsidiariesvi) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsbelow.
(iv) If after Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any Subsidiary shall issue amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (taking into account any Subordinated Debtwithholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall promptly notify Bank be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the estimated Net Cash Proceeds of such issuance relevant Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365 day period following the event giving rise to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancerelevant Subject Proceeds, Borrower shall prepay the Obligations in an aggregate amount equal to 100% the Subject Proceeds to the extent available, and not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and applicable Term Loans pursuant to such Obligations Section 2.11(b) as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.otherwise required above;
(v) Borrower shallAny Term Lender may elect, on each date by notice to the Revolving Credit Commitment is reduced pursuant Administrative Agent at or prior to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize time and in the L/C Obligations manner specified by the amountAdministrative Agent, if any, necessary prior to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Term Loans under this Section 2.8(b) shall required to be made by the payment Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the principal amount to be prepaid and“Declined Proceeds”), in which case such Declined Proceeds may be retained by the case Borrower; provided that, for the avoidance of doubt, no Lender may reject any Term Loans, accrued interest thereon prepayment made under Section 2.11(b)(iii) above to the date of prepayment together with any amounts due Bank under Section 3.3.extent that such
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Mandatory Prepayments. Within ten (i10) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount Business Days of the estimated receipt by any Obligor of Net Cash Proceeds from the occurrence of any Casualty Event or Asset Sale (other than Asset Sales permitted pursuant to be received by Section 9.09 (other than Section 9.09(h))), which, when taken together with all other Casualty Events and Asset Sales occurring since the Closing Date, results in Net Cash Proceeds in excess of $1,000,000 in the aggregate, the Borrower or such Subsidiary in respect thereofshall apply an amount equal to one hundred percent (100%) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds received with respect to such Casualty Event or Asset Sale, as the case may be, to (i) the prepayment of such Disposition or Event outstanding Loans, (ii) the payment of Loss, Borrower shall prepay accrued and unpaid interest on the Obligations in an aggregate principal amount equal to 100% of the Loans being prepaid and (iii) the payment of the Prepayment Premium. Such Net Cash Proceeds shall be allocated to such prepayment and payments such that the full amount of all principal, interest and the Prepayment Premium, if applicable, payable hereunder shall be paid in full with such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore . Notwithstanding the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) aboveforegoing, so long as no Default or Event of Default then existshas occurred and is continuing or shall immediately result therefrom, if if, within five (5) Business Days following the occurrence of any such Casualty Event or Asset Sale, a Responsible Officer of the Borrower states in its delivers to the Administrative Agent a notice of such event to the effect that the Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, apply (or cause to be applied) the Net Cash Proceeds thereof in assets similar from such Casualty Event or Asset Sale, to repair, refurbish, restore, replace or rebuild the assets which were asset subject to such DispositionCasualty Event or Asset Sale or to the cost of purchase or constructing other assets useful in the business of the Borrower or another Obligor or business operating expenses (in the case of Net Cash Proceeds of business interruption insurance), then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds of such Casualty Event or Asset Sale may be applied for such purpose in lieu of such mandatory prepayment otherwise required pursuant to this clause (b) to the extent such Net Cash Proceeds of such Casualty Event or Asset Sale are actually reinvested applied for such purpose; provided that, in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such event that Net Cash Proceeds have not been so reinvestedapplied within one hundred and eighty (180) days following the occurrence of such Casualty Event or Asset Sale, the Borrower shall promptly prepay make a mandatory prepayment of the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations made in an aggregate amount equal to one hundred percent (100% %) of the amount unused balance of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and Proceeds with respect to such Obligations Casualty Event or Asset Sale, as agreed to by Borrower the case may be, together with payment of accrued and Bank. Borrower acknowledges that its performance hereunder shall not limit unpaid interest on the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms principal amount of the Loan Documents.
(iii) If after Loans being so prepaid and the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneyapplicable Prepayment Premium, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1if applicable, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of with such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary amount of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding being allocated to the amount to which prepayment of principal, the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum payment of the accrued and unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment interest on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately being prepaid and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal Prepayment Premium, if applicable, such that the full amount payable with respect to be prepaid and, in the case such mandatory prepayment is paid with such unused balance of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3Net Cash Proceeds.
Appears in 1 contract
Mandatory Prepayments. (ia) If When Borrower or any Restricted Subsidiary sells or otherwise disposes of any Collateral, other than Inventory in the ordinary course of business, or a Casualty Event has occurred, then, unless a Reinvestment Notice shall at any time be delivered in respect thereof within ten (10) days of Borrower’s or from time to time make such Loan Party’s receipt of proceeds (including insurance proceeds, awards, or agree to make a Disposition compensation) of such sale or shall suffer an Event of Loss with respect to any Propertyother disposition or Casualty Event, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including repay the Advances made to Borrower in an amount of the estimated Net Cash Proceeds equal to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds Proceeds, such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided that (x) notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Advances and other amounts as set forth in this Section 2.14(a); and provided further, that so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace exist or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then existswould result therefrom, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by a sale, disposition, or for the account Casualty Event do not exceed $25,000,000 in any single transaction or series of Borrower related sales or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuancedispositions, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each then no such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bankrequired. Borrower acknowledges that its performance hereunder The foregoing shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance be deemed to be received by or for the account of Borrower or implied consent to any such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations sale otherwise prohibited by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans terms and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding conditions hereof. Such repayments shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Advances in such order as Agent may determine, subject to Borrower’s ability to reborrow Revolving Loans until paid Advances in full accordance with any remaining balance to be applied to Cash Collateralize the L/C Obligationsterms hereof.
(viib) Subject to the provisions of Section 4.11, Agent shall apply the proceeds of any insurance settlements from casualty losses which are received by Agent to the Advances in such order as Agent may determine, subject to Borrower’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(c) [Reserved].
(d) [Reserved].
(e) If at any time Loan Party receives any proceeds from the Dollar Equivalent issuance or incurrence of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimitany Indebtedness (other than Permitted Indebtedness), Borrower shall immediately repay the Advances made to Borrower in an amount equal to the net proceeds of such issuance or incurrence (i.e., gross proceeds less the reasonable costs of such issuance or incurrence), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and without notice until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or demand pay over issuance otherwise prohibited by the amount of the excess to Bank as terms and for a mandatory prepayment on such Obligations, with each such prepayment to conditions hereof. Such repayments shall be applied to the other Advances in such order as Agent may determine, subject to Borrower’s ability to reborrow Revolving Loans until paid Advances in full or accordance with the Euro Sublimit is no longer exceededterms hereof.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Loan and Security Agreement (Veeco Instruments Inc)
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition other than Dispositions in the ordinary course of business and the Net Cash Proceeds of which is greater than $500,000 or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of (i) an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, Documents or (yii) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account a Disposition of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate Property so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to replace or restore the Revolving Loansrelevant Property in accordance with the relevant Collateral Documents. If the Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.;
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.;
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viiiiii) Unless Borrower otherwise directs, prepayments of Revolving Loans under this Section 2.8(b) shall be applied first to the Term Loan Borrowings of Base Rate Loans until paid payment in full and then to the Revolving Loans (thereof with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be any balance applied to Borrowings of Eurodollar Loans in the Revolving Loans outstandingorder in which their Interest Periods expire. Each prepayment of Revolving Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3. Each prefunding of L/C Obligations shall be made in accordance with Section 8.4.
Appears in 1 contract
Sources: Credit Agreement (Female Health Co)
Mandatory Prepayments. (ia) If Borrower Within five (5) Business Days of Loyalty Co or any Subsidiary shall at other SPV Party receiving any time Net Proceeds from the issuance or from time to time make incurrence of any Indebtedness of Loyalty Co or agree to make a Disposition or shall suffer an Event of Loss any other SPV Party (other than with respect to any PropertyIndebtedness permitted to be incurred pursuant to Section 4.23), then Borrower the Issuers shall promptly notify Bank cause each Series of Notes’ Pro Rata Share of such proposed Disposition or Event of Loss Net Proceeds (including the “Issuance Mandatory Prepayment Amount”), plus accrued and unpaid interest on the aggregate principal amount of the estimated Net Cash Proceeds Notes to be received prepaid to, but excluding, the Prepayment Date (as defined below) (the “Issuance Remitted Amount”), to be remitted to the Trustee to be paid by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary the Trustee to Holders as of the Prepayment Record Date (as defined below) (such remittance date, as the case may be, a “Issuance Prepayment Date”).
(b) Within ten (10) Business Days of Delta or any of its Subsidiaries receiving any Net Cash Proceeds of such Disposition or Event of Lossa Pre-paid Miles Purchase which Net Proceeds, Borrower shall prepay together with the Obligations in an aggregate amount equal of Net Proceeds previously received from Pre-paid Miles Purchases since the Closing Date, are in excess of $500.0 million (such excess, “Excess PPM Net Proceeds”, and such event, a “PPM Mandatory Prepayment Event”), the Issuers shall cause each Series of Notes’ Pro Rata Share of such Excess PPM Net Proceeds (the “PPM Mandatory Prepayment Amount”), plus accrued and unpaid interest on the aggregate principal amount of Notes to 100% be prepaid to, but excluding, the Prepayment Date (as defined below) (the “PPM Remitted Amount”), to be remitted to the Trustee to be paid by the Trustee to Holders as of the amount of all Prepayment Record Date (as defined below) (such Net Cash Proceedsremittance date, as the case may be, a “PPM Prepayment Date”); provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower Issuers shall not be required to make a mandatory such prepayment under this subsection in respect of such Net Cash Proceeds to so long as the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the aggregate amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until received from Pre-paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after Miles Purchases since the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other is less than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents$505.0 million.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Indenture (Delta Air Lines, Inc.)
Mandatory Prepayments. Irrespective of whether a Control Notice Event then exists and is continuing:
(i) If Borrower When a Credit Party or any Subsidiary thereof makes any Asset Sale pursuant to Section 7.3(d), (e), or (f) or that is not otherwise permitted hereunder or experiences any Asset Loss Event, the Borrower shall at any time or from time to time make or agree to make a Disposition prepayment of the Loans in an amount equal to 100% of the Net Cash Proceeds thereof, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such Net Cash Proceeds shall be held in trust for Agent; provided, however, that the Net Cash Proceeds of the foregoing received since the Closing Date shall not be required to be applied to the prepayment of the Loans so long as:
(A) such proceeds are to be used to (i) replace, repair or restore such properties or assets used in such Credit Party’s or such Subsidiary’s, as applicable, business that were the subject of such Asset Sale or Asset Loss Event (such properties or assets, the “Original Assets”) or invest in other Revolver Priority Collateral (if the Original Assets are Revolver Priority Collateral) or Term Priority Collateral (if the Original Assets are Term Priority Collateral), as applicable, or (ii) invest in other properties or assets used in such Credit Party’s or such Subsidiary’s, as applicable, business with the consent of the Required Revolver Lenders (if the Original Assets are Revolver Priority Collateral) or the Required Term Lenders (if the Original Assets are Term Priority Collateral), as applicable, and
(B) (i) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (ii) Borrower delivers a certificate to Agent and Term Agent within three (3) Business Days after such Asset Sale, or ten (10) Business Days after the occurrence of Asset Loss Event (as applicable), stating that such Net Cash Proceeds shall suffer be used (or committed to be used) in accordance with clause (A) above within a period specified in such certificate not to exceed 180 days (or such longer period as the Agent and Term Agent may agree) after the receipt of such proceeds (which certificate shall set forth estimates of the proceeds to be so expended and shall set forth in reasonable detail any plans for such reinvestment, replacement, repair or restoration), (iii) such Net Cash Proceeds, if they exceed $5,000,000, are deposited in a non-interest bearing account subject to the dominion and control of the Agent which proceeds shall then be disbursed by Agent to such Credit Party or such Subsidiary promptly upon Borrower’s written request therefor setting forth in reasonable detail the use of such proceeds and certifying that such proceeds are being applied in the manner set forth in the certificate delivered to the Agent and Term Agent in accordance with clause (ii) above, (iv) to the extent consent of the Required Revolver Lenders or Required Term Lenders is required pursuant to clause (A) above, such consent has been obtained, and (v) Borrower delivers a certificate to Agent and Term Agent within five (5) Business Days after the use of such proceeds and certifying that such proceeds have been applied in the manner set forth in the certificate delivered to the Agent and Term Agent in accordance with clause (ii) above;
(i) When a Credit Party or any Subsidiary thereof makes any Asset Sale pursuant to Section 7.3(d), (e), or (f) or that is not otherwise permitted hereunder or experiences any Asset Loss Event, the Borrower shall make a prepayment of the Loans in an amount equal to 100% of the Net Cash Proceeds thereof, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such Net Cash Proceeds shall be held in trust for Collateral Agent; provided, however, that the Net Cash Proceeds of the foregoing received since the Closing Date shall not be required to be applied to the prepayment of the Loans to the extent such proceeds are to be reinvested in or otherwise used to replace, repair or restore the properties or assets used in such Credit Party’s or such Subsidiary’s, as applicable, business and so long as: (i) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (ii) Borrower delivers a certificate to Agent within three (3) Business Days after such Asset Sale, or ten (10) Business Days after the occurrence of Asset Loss Event (as applicable) stating that such Net Cash Proceeds shall be used (or committed to be used) to reinvest in new assets useful in the business, or otherwise replace, repair or restore any such properties or assets to be used in a Credit Party’s or a Subsidiaries’ business, as the case may be, within a period specified in such certificate not to exceed 180 days (or such longer period as the Agent may agree, after the receipt of such proceeds (which certificate shall set forth estimates of the proceeds to be so expended and shall set forth in reasonable detail any plans for such reinvestment, replacement, repair or restoration) and (iii) such Net Cash Proceeds, if they exceed $5,000,000, are deposited in a non-interest bearing account subject to the dominion and control of the Agent which proceeds shall then be disbursed by Agent to such Credit Party or such Subsidiary promptly upon Borrower’s written request therefor setting forth in reasonable detail the use of such proceeds and certifying that such proceeds are being applied in the manner set forth in the certificate delivered to the Agent in accordance with clause (ii); provided, further, that (A) if all or any portion of such Net Cash Proceeds not so applied to the prepayment of the Loans are not used (or committed to be used) in accordance with the foregoing proviso within 180 days (or such longer period as the Agent and Term Agent may agree) of receipt of such Net Cash Proceeds, such amount shall be applied to the Loans as otherwise set forth hereinin Section 2.6(c), on the last day of such specified period, (B) if such Credit Party or such Subsidiary, as the case may be, is not permitted to reinvest or utilize such Net Cash Proceeds in accordance with this Section 2.6(b) as a result of the existence of a Default, Borrower may request, and upon the written approval of CollateralAgent and Term Agent, such Net Cash Proceeds shall be deposited in a non-interest bearing account subject to the dominion and control of the Agent until the earlier of (x) the date on which such Default is cured or waived in writing in accordance with the terms of this Agreement, in which case such amounts may be reinvested or utilized in accordance with the proviso above and (y) the date on which an Event of Loss with respect to any PropertyDefault shall occur, then Borrower shall promptly notify Bank of in which case such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds shall be applied to the Loans in accordance with Section 2.6(c) on such date and (C) if such Credit Party or such Subsidiary, as the case may be, is not permitted to reinvest or utilize such net cash proceeds as a result of a continuing Event of Default, such Net Cash Proceeds shall be applied in accordance with Section 2.6(c). The foregoing shall not be deemed to be received implied consent to any Asset Sale or other event otherwise prohibited by the terms and conditions hereof.
(ii) Upon the sale, issuance or incurrence of any Indebtedness of any Credit Party or any of its Subsidiaries (other than Indebtedness permitted under Section 7.1), Borrower or such Subsidiary shall repay the TermRevolving Loans (without a commitment reduction) in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary an amount equal to 100% of the Net Cash Proceeds of such Disposition sale, issuance or Event incurrence, such repayments to be made concurrent with the receipt of Losssuch Net Cash Proceeds. The foregoing shall not be deemed to be implied consent to any such sale, issuance or incurrence otherwise prohibited by the terms and conditions hereof.
(iii) When any Credit Party or any Subsidiary thereof receives any Extraordinary Receipts, the Borrower shall prepay repay the Obligations Revolving Loans (without a commitment reduction) in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as thereof, such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account repayment to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
made promptly but in no event more than five (ii5) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon Business Days following receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder The foregoing shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance be deemed to be received by implied consent to any event or for the account condition giving rise to any Extraordinary Receipts which would otherwise constitute a Default or Event of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans Default under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3Agreement.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.)
Mandatory Prepayments. If at any time (i) If Borrower the sum of the aggregate amount of outstanding Committed Revolving Loans (other than Committed Revolving Loans made for the purpose of repaying Competitive Loans but not yet so applied) plus the aggregate amount of Competitive Loans (other than Competitive Loans made for the purpose of repaying Committed Revolving Loans but not yet so applied) shall exceed the aggregate Revolving Committed Amount, or any Subsidiary (ii) the aggregate amount of Competitive Loans shall at any time or from time exceed the Competitive Loan Maximum Amount, the Borrowers shall immediately make payment on the Loans in an amount sufficient to time make or agree eliminate such excess. In the case of a mandatory prepayment required on account of subsection (ii), the amount required to make a Disposition or be prepaid hereunder shall suffer an Event serve to temporarily reduce the Revolving Committed Amount (for purposes of Loss with respect to any Propertyborrowing availability hereunder, then Borrower shall promptly notify Bank but not for purposes of such proposed Disposition or Event computation of Loss (including fees) by the amount of the estimated Net Cash Proceeds payment required until such time as the situation described in subsection (ii) shall no longer exist. Payments required to be received by Borrower made hereunder shall be applied first to Committed Revolving Loans or such Subsidiary in respect thereof) andCompetitive Loans, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Lossas appropriate, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment and with respect to Net Cash Proceeds received on account the types of an Event Loans, first to Base Rate Loans and then to Eurodollar Loans in direct order of Loss so long as such Net Cash Proceeds their Interest Period maturities. To the extent that the Borrowers are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds the Loans which is required to be applied to Competitive Loans or to Committed Revolving Loans which are Eurodollar Loans (following the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 operation of the immediately preceding sentence) on a date other than the last day period. Promptly after of an Interest Period applicable thereto, at the end option of such 90 day periodthe Borrowers, Borrower the Agent shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in hold the amount of such Net Cash Proceeds not so reinvestedprepayment in an account in the Agent's sole dominion and control. The amount of each such prepayment Agent shall be applied first to invest the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and amounts held by it in such account as directed by the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for Borrowers. On the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank last day of the estimated Net Cash Proceeds Interest Period relating to the next-maturing Competitive Loans or to Committed Revolving Loans which are Eurodollar Loans, as appropriate, the Agent shall apply the amounts held by it in such account to the prepayment of such issuance to be received by or for maturing Loan and the account Agent shall notify the Borrowers of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds the application of such issuance, Borrower shall prepay amounts. Upon the Obligations in an aggregate amount equal to 100% direction of the amount of such Net Cash Proceeds. Each such prepayment Borrowers, the Agent shall be applied apply any earnings on amounts held in such amounts and account to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon on such Loans or shall release such earnings to the date of prepayment together with any amounts due Bank under Section 3.3Borrowers.
Appears in 1 contract
Sources: Credit Agreement (Promus Hotel Corp)
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event Not later than the fifth Business Day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andof any Asset Sale or any Recovery Event (to the extent that such Net Cash Proceeds exceed $1,000,000 in the aggregate), promptly upon receipt by Borrower or such Subsidiary the Borrowers shall apply 100% of the Net Cash Proceeds (provided that such percentage shall be reduced to 75% if the Total Net Leverage Ratio after giving Pro Forma Effect to such Asset Sale is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, and to 50% if the Total Net Leverage Ratio after giving Pro Forma Effect to such Asset Sale is less than or equal to 2.00 to 1.00) received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(d); provided that: so long as no Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds are expected to be used, or committed to be used, to acquire assets useful (in the good faith judgment of the U.S. Borrower) in the Borrowers’ (or their Restricted Subsidiaries’) business within 12 months following the date of such Disposition Asset Sale or Recovery Event; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if the Borrowers or any of their Restricted Subsidiaries have entered into a binding contractual commitment for reinvestment within such 12-month period, not so reinvested within 18 months following the date of such Asset Sale or Recovery Event), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.13(a); provided, further, that if at the time that any such prepayment would be required, the Borrowers or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Sale or Recovery Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the applicable Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of Lossthe aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time so long as 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, Borrower and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase, redemption or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.13(a) shall be reduced accordingly.
(b) No later than the fifth Business Day after the date on which financial statements with respect to a fiscal year of Holdings are delivered pursuant to Section 5.04(a), beginning with the fiscal year ending on or about December 31, 2019, the Borrowers shall prepay the Obligations outstanding Term Loans in accordance with Section 2.13(d) in an aggregate principal amount equal to the excess (if any) of (x) 50% of Excess Cash Flow for the fiscal year then ended (provided that such percentage shall be reduced to 25% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, and to 0% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.00 to 1.00) minus (y) Voluntary Prepayments made during such fiscal year, on a dollar-for-dollar basis, other than to the extent any such Voluntary Prepayment is funded with the proceeds of new long-term Indebtedness.
(c) In the event that any Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed of any Borrower or any Restricted Subsidiary (other than any cash proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrowers shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by the Borrowers or such Restricted Subsidiary, apply an amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(d).
(d) So long as any Term Loans are outstanding, mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata to each Class of Term Loans (except, in the extent case of amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.13(b), such Net mandatory prepayments shall be allocated to each of the U.S. Term Loans and the Cayman Term Loans based on the amount of Excess Cash Proceeds are actually reinvested Flow generated by each of the U.S. Borrower and the Domestic Subsidiaries, on the one hand, and the Cayman Borrower and the Foreign Subsidiaries, on the other hand, as determined in such similar assets with such 90 day period. Promptly after good faith by the end U.S. Borrower) and within each Class to any installments thereof (1) in direct order of such 90 day periodmaturity of the remaining installments for the next eight amortization payments following the relevant prepayment event, and (2) thereafter, ratably to the remaining installments.
(e) Each Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, anddeliver to the Administrative Agent, to the extent such Net Cash Proceeds have not been so reinvestedpracticable, Borrower at least three Business Days prior written notice of a prepayment required under this Section 2.13. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent shall promptly prepay advise the Obligations Lenders of any notice given (and the contents thereof) pursuant to this Section 2.13. Each such Term Lender may reject all of its pro rata share of the prepayment (excluding the Outside Date Prepayment) (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrowers no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such Term Lender’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Term Lender shall specify the principal amount of the prepayment to be rejected by such Term Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Any Declined Proceeds may be retained by the Borrowers. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and (other than prepayments of ABR Revolving Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit Commitments) shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(f) In connection with any mandatory prepayments by the Borrowers of the Term Loans pursuant to this Section 2.13, such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Alternate Base Rate Loans or Eurodollar Rate Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.13(e), then, with respect to such mandatory prepayment, the amount of such Net Cash Proceeds not so reinvested. The amount of each such mandatory prepayment shall be applied first to the outstanding Term Loans until paid in full and then that are Alternate Base Rate Term Loans to the Revolving Loans; provided full extent thereof before application to Term Loans that proceeds relating to Eligible Inventory and Eligible Receivables then included are Eurodollar Rate Term Loans in a manner that minimizes the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds amount of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account any payments required to be disbursed made by the Borrowers pursuant to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertySection 2.16.
(iig) If after In the Closing Date Borrower or event of any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)termination of all the Revolving Credit Commitments, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) U.S. Borrower shall, on each the date the of such termination, repay or prepay all its outstanding Revolving Credit Commitment is reduced pursuant Borrowings and replace, cause to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding be canceled or collateralize in a manner reasonably satisfactory to the amount Issuing Bank with respect to which the Revolving Credit Commitment has been so reduced.
(vi) If at all outstanding Letters of Credit. If, after giving effect to any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent partial reduction of the Revolving Credit Commitments, the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the U.S. Borrower shall, on the date of such reduction, repay or prepay Revolving Credit Borrowings and, after the Revolving Credit Borrowings shall have been repaid or prepaid in full, replace, cause to be canceled or collateralize in a manner reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to Letters of Credit in an amount sufficient to eliminate such excess. Notwithstanding any other provisions of this Section 2.13, if the Borrowers determine in good faith that the repatriation by any Foreign Subsidiary, of any amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.13(a) or (b) above would result in material and adverse tax consequences (including from withholding tax), taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as reasonably determined by the Borrowers, the amount that the U.S. Borrower shall be required to mandatorily prepay pursuant to Sections 2.13(a) or (b) above, as applicable, shall be reduced by the Restricted Amount until such time as such Foreign Subsidiaries may repatriate to the U.S. Borrower the Restricted Amount without incurring such material and adverse tax liability (the Borrowers hereby agreeing to use commercially reasonable efforts to, and to cause each of its Foreign Subsidiaries to, promptly take all available actions reasonably required to mitigate such tax liability); provided that to the proceeds extent that the repatriation of any Net Cash Proceeds or Excess Cash Flow from the divestiture of relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Net Cash Proceeds or Excess Cash Flow, ▇▇▇▇▇▇as applicable, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ not previously applied pursuant to the immediately preceding clause shall be permitted to first be promptly applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment repayment of the principal amount Term Loans pursuant to be prepaid and, in the case of any Term Loans, accrued interest thereon Sections 2.13(a) or (b) as otherwise required above (without regard to the date of prepayment together with any amounts due Bank under Section 3.3this paragraph).
Appears in 1 contract
Sources: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mandatory Prepayments. (ia) If On each occasion that an Asset Sale Prepayment Event or Casualty Event occurs, the Borrower shall, within ten Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), subject to the reinvestment rights in the definition of Net Cash Proceeds and Section 6.03(d), prepay, in accordance with clause (e) below, Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or any Subsidiary shall at any time or from time Casualty Event, in each case solely to time make or agree to make a Disposition or shall suffer an Event of Loss the extent with respect to any PropertyCollateral, then the Borrower shall promptly notify Bank may use a portion of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on such Collateral to the extent any such Indebtedness requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on such Collateral and with respect to which such a requirement to prepay or make an offer to purchase exists and the denominator of which is the sum of the outstanding principal amount of such Indebtedness and the outstanding principal amount of Loans.
(b) On each occasion of a Debt Incurrence Prepayment Event, the Borrower or such Subsidiary in respect thereof) and, promptly upon shall within three Business Days of receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of LossIndebtedness prepay, Borrower shall prepay the Obligations in an aggregate accordance with clause (e) below, Loans with a principal amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account from such issuance or incurrence of Indebtedness.
(i) On an Event occasion that the Initial Public Offering occurs, the Borrower shall within ten Business Days of Loss so long as receipt of the Cash Net Equity Proceeds of such Net Cash Proceeds are applied to replace or restore the relevant Property Initial Public Offering prepay, in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (ye) abovebelow, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make Loans with a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate principal amount equal to 100% of such Cash Net Equity Proceeds from such Initial Public Offering and (ii) on each occasion that an Equity Issuance Prepayment Event occurs, the amount Borrower shall, within ten Business Days receipt of the cash net equity proceeds of such Net Cash Proceeds. Each such prepayment shall be applied Equity Issuance Prepayment Event prepay, in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 accordance with clause (Maintenance of Subsidiariese) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneybelow, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate Loans with a principal amount equal to 100% of such Cash Net Equity Proceeds from such issuance.
(d) Notwithstanding any other provisions of this Section 2.12, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (a) above received by a Foreign Subsidiary are prohibited or delayed by any applicable law from being repatriated, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Loans at the times provided in clause (a) above, as the case may be, but only so long, as the applicable law will not permit repatriation (the Obligors hereby agreeing to promptly take all actions reasonably required by the applicable law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds is permitted under the applicable law, an amount equal to such Net Cash Proceeds will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clause (a) above and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds would have a material adverse tax consequence with respect to such Net Cash Proceeds. Each , an amount equal to the Net Cash Proceeds so affected may be retained by the applicable Foreign Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (a) above (x) the Borrower shall apply an amount equal to such prepayment Net Cash Proceeds to such reinvestments as if such Net Cash Proceeds had been received by the Obligors rather than such Foreign Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in such amounts and this Agreement, including Section 2.12 shall be construed to such Obligations as agreed require any Foreign Subsidiary to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsrepatriate cash.
(ive) If after Subject to Section 2.12(g), each prepayment of Loans required by Section 2.12 shall be allocated pro rata among the Closing Date Borrower or any Subsidiary Initial Term Loans based on the applicable remaining outstanding amount due thereunder and shall issue any Subordinated Debt, Borrower shall promptly notify Bank be applied within each Class of the estimated Net Cash Proceeds Loans in respect of such issuance Loans in direct order of maturity thereof or as otherwise directed by the Borrower. Subject to be received by or Section 2.12(g), with respect to each such prepayment, the Borrower will, not later than the date specified in Section 2.12(a) for making such prepayment, give the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Administrative Agent written notice which shall prepay the Obligations in an aggregate amount equal to 100% include a calculation of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to each Class of Loans requesting that the Revolving Loans until paid in full or the Euro Sublimit is no longer exceededAdministrative Agent provide notice of such prepayment to each Lender of Initial Term Loans.
(viiif) Unless Borrower otherwise directs, prepayments With respect to each prepayment of Loans under this required by Sections 2.12(a)-(c), the Borrower may, if applicable, designate the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made; provided, that if any Lender has provided a Rejection Notice in compliance with Section 2.8(b) 2.12(g), such prepayment shall be applied first with respect to the Term Loan until paid Loans to be prepaid on a pro rata basis across all outstanding Types of such Loans in full and then proportion to the Revolving percentage of such outstanding Loans (to be prepaid represented by each such Class. In the absence of a Rejection Notice or a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with a concurrent permanent reduction view, but no obligation, to minimize breakage costs owing under Section 2.07.
(g) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to Sections 2.12(a)-(c) at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the Revolving Commitment); provided that the proceeds from the divestiture amount of such prepayment. The Administrative Agent will promptly notify each Lender holding Loans of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ contents of such prepayment notice and of such ▇▇▇▇▇▇’s pro rata share of the prepayment. Each Lender may reject all (but not less than all) of its pro rata share of any mandatory prepayment other than any such mandatory prepayment with respect to a Debt Incurrence Prepayment Event under Section 2.12(a) and Indebtedness under Section 2.12(b) (such declined amounts, the “Declined Proceeds”) of Loans required to be made pursuant to Sections 2.12(a)-(c) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent no later than 5:00 p.m. (New York City time) one Business Day after the date of such ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted ’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to first be applied deliver a Rejection Notice to the Revolving Loans outstanding. Each Administrative Agent within the time frame specified above, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (CoreWeave, Inc.)
Mandatory Prepayments. i. Co-Borrowers shall prepay the Term Loans, LC Loans and LC Reimbursement Obligations as follows (ieach, a “Mandatory Prepayment”):
(A) If Borrower or any Subsidiary shall at any time or from time [reserved];
(B) on each Quarterly Payment Date occurring on and after the last day of the first quarter after the Term Conversion Date, in an amount necessary to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including cause the outstanding principal amount of the estimated Net Loans to equal the Target Debt Balance for such Quarterly Payment Date, which amount shall in no event exceed 100% of Excess Cash Proceeds to be received by Borrower or Flow remaining on deposit in the Revenue Account as of such Subsidiary in respect thereofQuarterly Payment Date (the “Target Debt Balance Excess Cash Flow Sweep”);
(C) and, promptly upon not later than five Banking Days following the receipt by any Borrower or such Subsidiary Party of the Net Cash Proceeds proceeds of such Disposition any conveyance, sale, lease, transfer or Event other disposition of Lossassets or property other than pursuant to Section 6.4(a) through (g) (each, Borrower a “Disposition”) exceeding $2,000,000, in the aggregate, the Co-Borrowers shall prepay the Loans and LC Reimbursement Obligations then outstanding (together with accrued and unpaid interest, accrued and unpaid fees and the applicable Call Premium on the Term Loans) in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account in excess of an Event $2,000,000 applicable to such Disposition; provided that, if the Co-Borrowers notify the Administrative Agent in writing of Loss so long as their intention to reinvest such Net Cash Proceeds are applied to replace in assets necessary or restore useful for the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days business of the applicable DispositionProject (excluding, for the Net Cash Proceeds thereof in avoidance of doubt, assets similar that would be reflected as “current assets” on the balance sheet, which will be pledged as Collateral hereunder) pursuant to the assets which were subject to such Dispositiona transaction not prohibited under this Agreement, then Borrower the Co-Borrowers shall not be required to make a mandatory such prepayment under this subsection in respect of such Net Cash Proceeds to the extent that such Net Cash Proceeds are actually so reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day periodwithin 12 months following receipt thereof; provided, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, andfurther that, to the extent such Net Cash Proceeds have not been so reinvestedreinvested prior to the expiration of the foregoing 12-month period, Borrower the Co-Borrowers shall promptly prepay the Loans and LC Reimbursement Obligations upon the expiration of such period in the an amount of equal to such Net Cash Proceeds not so reinvested. The amount of each Proceeds; provided that such prepayment shall be applied first include the applicable Call Premium;
(D) within five Banking Days of receipt thereof by any Borrower Party, the Co-Borrowers shall prepay the Loans and LC Reimbursement Obligations then outstanding (together with accrued and unpaid interest, accrued and unpaid fees and the applicable Call Premium on the Term Loans) in an amount equal to 100% of the outstanding Term Loans until paid cash proceeds from the incurrence or issuance received by any Borrower Party of any Debt other than Permitted Debt, net of all Taxes and reasonable and customary fees, underwriting discounts, commissions, costs and other expenses, in full and then to each case actually incurred by the Revolving Loansapplicable Co-Borrower in connection with such issuance or incurrence; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in such prepayment shall include the Borrowing Base shall first be applied to applicable Call Premium;
(E) within five Banking Days of receipt by any Borrower Party of the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in any Project Document Claim, the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Co-Borrowers shall prepay the Loans and LC Reimbursement Obligations then outstanding (together with accrued and unpaid interest and accrued and unpaid fees on such Loans and LC Reimbursement Obligations) in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account Project Document Claim;
(F) within five Banking Days of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by any Borrower Party of any (i) Termination Payment or such Subsidiary series of Net Cash Proceeds of such issuancerelated Termination Payments exceeding $2,000,000, Borrower or (ii) any Project Document Termination Payment, the Co-Borrowers shall prepay the Loans and LC Reimbursement Obligations then outstanding (together with accrued and unpaid interest and accrued and unpaid fees on such Loans and LC Reimbursement Obligations) in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance Termination Payment in excess of $2,000,000 or Project Document Termination Payment; provided, that, with respect to be any Termination Payment (but, for the avoidance of doubt, not any Project Document Termination Payment) exceeding $2,000,000 received by or for the account Co-Borrowers pursuant to and following the termination of Borrower or any Permitted Commodity Hedge Agreement, if the Co-Borrowers notify the Administrative Agent in writing of their intention to enter into a replacement Permitted Commodity Hedge Agreement pursuant to a transaction not prohibited under this Agreement, the Co-Borrowers shall not be required to make such Subsidiary in respect thereof. Promptly upon receipt by Borrower or prepayment to the extent that such Subsidiary of Net Cash Proceeds are actually used within 90 days from receipt of such issuanceTermination Payment to replace such terminated Permitted Commodity Hedge Agreement with a replacement agreement substantially similar to or on terms more economically favorable to the applicable Co-Borrower than the Permitted Commodity Hedge Agreement it replaces and substantially similar to or on more favorable non-economic terms (taken as a whole) than the Permitted Commodity Hedge Agreement it replaces; provided, further, that if the applicable Co-Borrower has not entered into such a replacement contract with respect to such Permitted Commodity Hedge Agreement within such 90-day period, the Co-Borrowers shall prepay the Loans and LC Reimbursement Obligations then outstanding in an aggregate amount equal to 100% of the amount Net Cash Proceeds of such Net Cash ProceedsTermination Payment in excess of $2,000,000;
(G) as, when and to the extent contemplated by Sections 3.2(b)(iv)(C) and (D), 3.9(b)(ii), 3.9(b)(iii), 3.9(b)(v), 3.9(c)(ii) and 3.11(b)(i) of the Depositary Agreement or any other applicable provision of this Agreement or any other Credit Document; and
(H) on the Term Conversion Date, the Co-Borrowers shall prepay the Term Loans then outstanding (together with accrued and unpaid interest, and accrued and unpaid fees on such Term Loans) in an amount equal to the lesser of (x) the amount necessary to cause the Debt to Capitalization Ratio on such date to equal 0.75:1.00 and (y) the aggregate amount then remaining on deposit in the Construction Account. Each such prepayment (other than the prepayment referred to in clause (H) above) shall be applied applied, on a pro rata basis to (A) the outstanding Term Loans on a pro rata basis and in inverse order of maturity, together with accrued and unpaid interest payable in connection with such amounts prepayment, and together with any applicable Call Premium in connection with such prepayment, and (B) to the outstanding LC Loans and LC Reimbursement Obligations, on a pro rata basis, in each case, together with any accrued but unpaid interest payable in connection with such reimbursement or prepayment and together with any Liquidation Costs in connection with such prepayment.
ii. Co-Borrowers shall give Administrative Agent written notice of prepayment under Section 2.1.9(c)(i) not less than five Banking Days prior to such Obligations as agreed to by Borrower and Bankprepayment date. Borrower acknowledges that its performance hereunder Each such notice shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each specify such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of date, the aggregate principal amount of the total Revolving Loans to be prepaid on such prepayment date and the interest to be paid on such prepayment date with respect to such principal amount being prepaid, and, if applicable, shall be accompanied by a certificate of a Responsible Officer as to the estimated Call Premium due in Euros exceeds connection with such prepayment (calculated as if the Euro Sublimitdate of such notice were the date of the prepayment), Borrower setting forth the details of such computation. The Administrative Agent will promptly notify each Lender of the contents of the Co-Borrowers’ prepayment notice and of such Lender’s pro rata share of the prepayment. Each Lender may reject all or a portion of its pro rata share of any Mandatory Prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.1.9(c)(i)(C) or Section 2.1.9(c)(i)(D) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Co-Borrowers no later than 5:00 p.m. (New York City time) three Banking Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall immediately and without notice or demand pay over specify the principal amount of the excess to Bank as and for a mandatory prepayment on of Term Loans to be rejected by such ObligationsLender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, with each any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be first offered to the applicable Lenders that have not submitted a Rejection Notice, and any remaining Declined Proceeds shall be offered to the lenders under the Second Lien Credit Documents, to be applied to in accordance with the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction terms of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3Second Lien Credit Documents.
Appears in 1 contract
Sources: First Lien Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event Not later than the fifth Business Day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andof any Asset Sale or any Recovery Event (to the extent that such Net Cash Proceeds exceed $1,000,000 in the aggregate), promptly upon receipt by Borrower or such Subsidiary the Borrowers shall apply 100% of the Net Cash Proceeds (provided that such percentage shall be reduced to 75% if the Total Net Leverage Ratio after giving Pro Forma Effect to such Asset Sale is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, and to 50% if the Total Net Leverage Ratio after giving Pro Forma Effect to such Asset Sale is less than or equal to 2.00 to 1.00) received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(d); provided, that if at the time that any such prepayment would be required, the Borrowers or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Disposition Asset Sale or Recovery Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the applicable Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of Lossthe aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time so long as 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, Borrower and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase, redemption or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.13(a) shall be reduced accordingly.
(a) No later than the fifth Business Day after the date on which financial statements with respect to a fiscal year of Holdings are delivered pursuant to Section 5.04(a), beginning with the fiscal year ending on or about December 31, 2019, the Borrowers shall prepay the Obligations outstanding Term Loans in accordance with Section 2.13(d) in an aggregate principal amount equal to the excess (if any) of (x) 50% of Excess Cash Flow for the fiscal year then ended (provided that such percentage shall be reduced to 25% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, and to 0% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.00 to 1.00) minus (y) Voluntary Prepayments made during such fiscal year, on a dollar-for-dollar basis, other than to the extent any such Voluntary Prepayment is funded with the proceeds of new long-term Indebtedness.
(b) In the event that any Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed of any Borrower or any Restricted Subsidiary (other than any cash proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrowers shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by the Borrowers or such Restricted Subsidiary, apply an amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(d).
(c) So long as any Term Loans are outstanding, mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata to each Class of Term Loans (except, in the extent case of amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.13(b), such Net mandatory prepayments shall be allocated to each of the U.S. Term Loans and the Cayman Term Loans based on the amount of Excess Cash Proceeds are actually reinvested Flow generated by each of the U.S. Borrower and the Domestic Subsidiaries, on the one hand, and the Cayman Borrower and the Foreign Subsidiaries, on the other hand, as determined in such similar assets with such 90 day period. Promptly after good faith by the end U.S. Borrower) and within each Class to any installments thereof (1) in direct order of such 90 day periodmaturity of the remaining installments for the next eight amortization payments following the relevant prepayment event, and (2) thereafter, ratably to the remaining installments.
(d) Each Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, anddeliver to the Administrative Agent, to the extent such Net Cash Proceeds have not been so reinvestedpracticable, Borrower at least three Business Days prior written notice of a prepayment required under this Section 2.13. Each notice of prepayment shall specify the prepayment date, the Type of each Term Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent shall promptly prepay advise the Obligations Lenders of any notice given (and the contents thereof) pursuant to this Section 2.13. Each such Term Lender may reject all of its pro rata share of the prepayment (excluding the Outside Date Prepayment) (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrowers no later than 5:00 P.M., New York City time, one (1) Business Day after the date of such Term Lender’s receipt of such notice from the Administrative Agent. Each Rejection Notice from a given Term Lender shall specify the principal amount of the prepayment to be rejected by such Term Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment. Any Declined Proceeds may be retained by the Borrowers. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and (other than prepayments of ABR Revolving Loans that are not made in connection with the termination or permanent reduction of the Revolving Credit Commitments) shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(e) In connection with any mandatory prepayments by the Borrowers of the Term Loans pursuant to this Section 2.13, such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Alternate Base Rate Loans or Eurodollar Rate Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.13(e), then, with respect to such mandatory prepayment, the amount of such Net Cash Proceeds not so reinvested. The amount of each such mandatory prepayment shall be applied first to the outstanding Term Loans until paid in full and then that are Alternate Base Rate Term Loans to the Revolving Loans; provided full extent thereof before application to Term Loans that proceeds relating to Eligible Inventory and Eligible Receivables then included are Eurodollar Rate Term Loans in a manner that minimizes the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds amount of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account any payments required to be disbursed made by the Borrowers pursuant to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertySection 2.16.
(iif) If after In the Closing Date Borrower or event of any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)termination of all the Revolving Credit Commitments, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) U.S. Borrower shall, on each the date the of such termination, repay or prepay all its outstanding Revolving Credit Commitment is reduced pursuant Borrowings and replace, cause to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding be canceled or collateralize in a manner reasonably satisfactory to the amount Issuing Bank with respect to which the Revolving Credit Commitment has been so reduced.
(vi) If at all outstanding Letters of Credit. If, after giving effect to any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent partial reduction of the Revolving Credit Commitments, the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the U.S. Borrower shall, on the date of such reduction, repay or prepay Revolving Credit Borrowings and, after the Revolving Credit Borrowings shall have been repaid or prepaid in full, replace, cause to be canceled or collateralize in a manner reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to Letters of Credit in an amount sufficient to eliminate such excess. Notwithstanding any other provisions of this Section 2.13, if the Borrowers determine in good faith that the repatriation by any Foreign Subsidiary, of any amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.13(a) or (b) above would result in material and adverse tax consequences (including from withholding tax), taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as reasonably determined by the Borrowers, the amount that the U.S. Borrower shall be required to mandatorily prepay pursuant to Sections 2.13(a) or (b) above, as applicable, shall be reduced by the Restricted Amount until such time as such Foreign Subsidiaries may repatriate to the U.S. Borrower the Restricted Amount without incurring such material and adverse tax liability (the Borrowers hereby agreeing to use commercially reasonable efforts to, and to cause each of its Foreign Subsidiaries to, promptly take all available actions reasonably required to mitigate such tax liability); provided that to the proceeds extent that the repatriation of any Net Cash Proceeds or Excess Cash Flow from the divestiture of relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Net Cash Proceeds or Excess Cash Flow, ▇▇▇▇▇▇as applicable, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ not previously applied pursuant to the immediately preceding clause shall be permitted to first be promptly applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment repayment of the principal amount Term Loans pursuant to be prepaid and, in the case of any Term Loans, accrued interest thereon Sections 2.13(a) or (b) as otherwise required above (without regard to the date of prepayment together with any amounts due Bank under Section 3.3this paragraph).
Appears in 1 contract
Sources: Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mandatory Prepayments. (ia) If Borrower Indebtedness shall be issued or incurred by any Subsidiary shall at Loan Party (excluding any time or from time to time make or agree to make a Disposition or shall suffer Indebtedness incurred in accordance with Section 7.2, other than Permitted Additional Subordinated Debt) an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Cash Proceeds thereof shall be applied as soon as practicable but in any event within five Business Days after such issuance or incurrence toward the prepayment of all the Tranche B Term Loans as set forth in Section 2.11(d).
(b) If on any date any Loan Party shall receive Net Cash Proceeds from any Asset Sale, Specified Sale Leaseback Transaction or Recovery Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash ProceedsProceeds shall be applied as soon as practicable but in any event within ten days after the date of receipt thereof toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d); provided that provided, that, notwithstanding the foregoing, (xi) so long as no Default or Event of Default then exists, this subsection shall a Reinvestment Notice may not require any such prepayment be delivered with respect to a Specified Sale Leaseback Transaction that is not a Designated Sale Leaseback Transaction, (ii) no such prepayment shall be required in respect of the first $1,000,000 of Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower from Specified Sale Leaseback Transactions that are not exceeding $250,000 in Designated Sale Leaseback Transactions, (iii) a Reinvestment Notice with respect to a Designated Sale Leaseback Transaction shall not be permitted unless (A) after giving effect thereto and to any prepayments made hereunder, the aggregate so long as no Default or Event outstanding principal amount of Default then exists, Tranche B Term Loans does not exceed $300,000,000 and (zB) in the case Reinvestment Deferred Amount shall not exceed 662/3 % of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to therefrom (or of the assets which were subject to such Dispositionremaining Net Cash Proceeds therefrom, then Borrower shall not be required to make if a mandatory prepayment under this subsection in respect portion of such Net Cash Proceeds must be applied to prepay Tranche B Term Loans in order to satisfy the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end requirements of such 90 day periodclause (A) above), Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount that a minimum of 331/3% of such Net Cash Proceeds not so reinvested. The (or remaining Net Cash Proceeds, as the case may be) are applied to prepay Tranche B Term Loans as provided herein, and (iv) on each Reinvestment Prepayment Date, an amount of each such prepayment equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied first to toward the outstanding prepayment of the Tranche B Term Loans until paid as set forth in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertySection 2.11(d).
(iic) If after If, for any fiscal year of the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection commencing with the exercise of employee stock optionsfiscal year ending September 30, 2007, there shall be Excess Cash Flow, the Borrower shall promptly notify Bank of shall, on the estimated Net relevant Excess Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuanceFlow Application Date, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% (i) the ECF Percentage of such Excess Cash Flow less (ii) the aggregate principal amount of all prepayments of Revolving Loans and Swingline Loans made during such fiscal year to the extent accompanying permitted optional reductions of the Revolving Commitments and the aggregate principal amount of all optional prepayments of Tranche B Term Loans made during such Net Cash Proceedsfiscal year, toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(d). Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the rights and remedies earlier of Bank for any breach of Section 7.5 (Maintenance of Subsidiariesi) or Section 8.1(i) (Change of Control) hereof or any other terms the date on which the financial statements of the Loan DocumentsBorrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.
(iiid) If after the Closing Date Borrower or The application of any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank prepayment of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced Tranche B Term Loans pursuant to Section 2.132.11 shall be made, prepay the Revolving first, to ABR Loans and, if necessarysecond, Cash Collateralize the L/C Obligations by the amountto Eurodollar Loans; provided that, if anysuch application would be inconsistent with Section 2.17 (b), necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b2.17(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstandingapply. Each prepayment of Tranche B Term Loans under this Section 2.8(b) 2.11 shall be made accompanied by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of such prepayment together with on the amount prepaid and by any amounts due Bank under payable pursuant to Section 3.32.20.
Appears in 1 contract
Mandatory Prepayments. (ia) If Unless the Required Prepayment Lenders shall otherwise agree, if any indebtedness for borrowed money (excluding any Indebtedness permitted to be incurred in accordance with Section 7.2 or incurred with the consent of the Required Prepayment Lenders) shall be incurred by the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer of its Subsidiaries an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Cash Proceeds thereof shall be applied within two Business Days of all the date of receipt of such Net Cash ProceedsProceeds toward the prepayment of the Term Loans as set forth in Section 2.12(d).
(b) Unless the Required Prepayment Lenders shall otherwise agree, if on any date any of the Borrower or any Subsidiary Guarantor shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied within two Business Days of such date toward the prepayment of the Term Loans as set forth in Section 2.12(d); provided that notwithstanding the foregoing, (i) on the date (the “Trigger Date”) that is six months after the applicable Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date and (ii) if the Borrower or any Subsidiary Guarantor shall receive Net Cash Proceeds from any Specified Asset Sale, then (x) so long as no Default or Event if the Specified Asset Sale Multiple is greater than the lower of Default (A) 5.00:1.00 and (B) the Consolidated Total Leverage Ratio on the date such Specified Asset Sale is consummated after giving pro forma effect to such Specified Asset Sale (the lower of (A) and (B) the “Applicable Leverage Ratio”), then exists, this subsection shall not require any the portion of such prepayment with respect to Net Cash Proceeds received equal to the product of the Applicable Leverage Ratio multiplied by Consolidated EBITDA of Holdings, the Borrower and its Subsidiaries directly attributable to such Specified Asset being disposed of shall be applied within two Business Days of such date toward the prepayment of the Term Loans as set forth in Section 2.12(d) with the remainder permitted to be applied in accordance with and subject to compliance with Section 7.6(h) and (y) otherwise, 100% of such Net Cash Proceeds shall be applied within two Business Days of the date on account of an Event of Loss so long as which such Net Cash Proceeds are applied to replace or restore received toward the relevant Property prepayment of the Term Loans as set forth in accordance with Section 2.12(d).
(c) Unless the relevant Collateral DocumentsRequired Prepayment Lenders shall otherwise agree, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during if, for any fiscal year of Holdings commencing with the fiscal year ending June 30, 2008 (if the fiscal year of Holdings ends on June 30) or December 31, 2008 (if the fiscal year of Holdings ends on December 31), there shall be Excess Cash Flow, the Borrower not exceeding $250,000 in shall, on the relevant Excess Cash Flow Application Date thereafter, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the aggregate so long as no Default or Event amount of Default then exists, all optional prepayments of Revolving Loans and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of Swingline Loans during such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds fiscal year to the extent accompanied by permanent optional reductions of the Revolving Commitments and all optional prepayments of the Term Loans during such Net Cash Proceeds are actually reinvested fiscal year, in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, each case other than to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each any such prepayment shall be applied first to is funded with the outstanding proceeds of new long-term indebtedness for borrowed money, toward the prepayment of the Term Loans until paid as set forth in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwiseSection 2.12(d), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied made on a date (an “Excess Cash Flow Application Date”) no later than three Business Days after the date on which the financial statements of Holdings referred to in Section 6.1(a), for the fiscal year with respect to which such amounts and prepayment is made, are required to such Obligations as agreed be delivered to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan DocumentsLenders.
(iiid) If Amounts to be applied in connection with prepayments pursuant to Section 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Notwithstanding anything to the contrary in Section 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Term Loans (which, for avoidance of doubt, includes any New Term Loans) (such amounts, the “Prepayment Amount”), at any time when Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans as provided in paragraph (d) above, on the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Lender (which, for avoidance of doubt, includes each New Term Lender) a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit I (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is ten Business Days after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank date of the estimated Net Cash Proceeds Prepayment Option Notice, the relevant Term Loans of such issuance to be received Lender by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted (it being understood that any Lender’s failure to object prior to the relevant Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of such Net Cash Proceeds. Each Prepayment Option Notice and the amount to be prepaid in respect of Term Loans held by such Lender) prepayment as described above and (ii) the Borrower shall offer to pay to such accepting Term Lenders an amount equal to the portion of the aggregate Prepayment Amount not accepted by the relevant Term Lenders, and (to the extent accepted by any or all of such accepting Term Lenders) such amount shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms prepayment of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of Term Loans held by such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly Term Lenders ratably based upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans such Loans; provided that, following such offer and L/C Obligations then outstanding application, any amount remaining unapplied shall be returned to the amount to which the Revolving Credit Commitment has been so reducedBorrower.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Mandatory Prepayments. (ia) If Unless the Required Lenders shall otherwise agree, if on any date the Borrower or any Subsidiary of its Subsidiaries shall at receive Net Cash Proceeds from any time Asset Sale (other than any Asset Sale consummated pursuant to the Second Securitization Arrangements) then, unless a Reinvestment Notice shall be delivered in respect of such Asset Sale, such Net Cash Proceeds shall be applied on or from time prior to time make or agree the 30th day after such date toward the prepayment of the Revolving Credit Loans in accordance with Sections 2.7(e) and 2.13; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to make a Disposition or shall suffer an Event of Loss the Reinvestment Prepayment Amount with respect to any Property, then Borrower the relevant Reinvestment Event shall promptly notify Bank of such proposed Disposition or Event of Loss (including be applied toward the amount prepayment of the estimated Revolving Credit Loans in accordance with Sections 2.7(e) and 2.13.
(b) Unless the Required Lenders shall otherwise agree, if on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds to from any Recovery Event then, unless a Reinvestment Notice shall be received by Borrower or such Subsidiary delivered in respect thereof) andof such Recovery Event, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds shall be applied on or prior to the 30th day after such date toward the prepayment of the Revolving Credit Loans in accordance with Sections 2.7(e) and 2.13; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Revolving Credit Loans in accordance with Sections 2.7(e) and 2.13.
(c) Unless the Required Lenders shall otherwise agree, if on any date, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Disposition pursuant to Section 7.5(h), then, such Disposition Net Cash Proceeds shall be applied on such date toward the prepayment of the outstanding Revolving Credit Loans in accordance with Sections 2.7(e) and 2.13.
(d) Unless the Required Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Borrower or Event any of Lossits Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.2, Borrower shall prepay but including for purposes of this Section 2.7(d) only any certificates or evidences of Indebtedness issued or incurred pursuant to the Obligations in Second Securitization Arrangements), an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to on the outstanding Term Loans until paid in full and then to date of such incurrence toward the prepayment of the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included Credit Loans as set forth in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agentSections 2.7(e) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property2.13.
(iie) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received Amounts required by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of this Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent prepayment of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro SublimitCredit Loans, Borrower if any, shall immediately and without notice or demand pay over the amount of the excess to Bank as and for not require a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent corresponding reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.Revolving
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Mandatory Prepayments. (a) The Borrower shall, within five (5) Business Days of the receipt of any Net Cash Proceeds by Holdings or its Subsidiaries in connection with (i) If Borrower Dispositions (other than Dispositions permitted by clauses (b) through (h) and (j) of Section 6.5) or any Subsidiary shall at any time or from time to time make or agree to (ii) Recovery Events, make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount mandatory prepayment of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (xA) so long at the option of the Borrower (as no Default or Event elected by the Borrower in writing to the Administrative Agent by delivery of Default then exists, a Reinvestment Notice) such proceeds may be retained by the Borrower (and be excluded from the prepayment requirements of this subsection shall not require any clause) if the Borrower informs the Administrative Agent in such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower its good faith intention to reinvest or the relevant Subsidiary intends commit to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of Holdings or any of its Subsidiaries (and, to the extent the assets subject to such Disposition or Recovery Event constituted Collateral, in assets that will constitute Collateral) within 365 days after the receipt of such proceeds (and, if the Borrower has committed to reinvest within such 365 day period, the Borrower reinvests within 90 days following such 365 day period), (B) at the option of the Borrower as notified in writing by a Responsible Officer to the Administrative Agent that the Borrower (directly or indirectly through a Subsidiary including the SPV Purchaser) intends and expects to use all or a portion of the Net Cash Proceeds are actually reinvested of a Disposition or Recovery Event in connection with a Deleveraging Event, such proceeds may be retained by the Borrower (and be excluded from the prepayment requirements of this clause) if the Borrower informs the Administrative Agent in such similar assets with such 90 day period. Promptly after the end notice of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested its good faith intention to use such Net Cash Proceeds in connection with a Deleveraging Event within 455 days after the receipt of such similar assets, and, proceeds (it being understood that to the extent the Borrower intends to use such proceeds to fund a Discounted Purchase, it must use such proceeds to fund a Discounted Purchase prior to the Discounted Purchase Option Date); provided further, it being understood and agreed that to the extent the Borrower has so notified the Administrative Agent in writing that it intends to use Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of a Disposition or Recovery Event to reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of Holdings or any of its Subsidiaries or for a Deleveraging Event in accordance with this clause (B), then notwithstanding an indication in any such notice to use such proceeds for reinvestment or a Deleveraging Event, the Borrower may use such Net Cash Proceeds for either reinvestment or a Deleveraging Event (subject to the limitation that a proceeds shall be used to fund a Discounted Purchase prior to the Discounted Purchase Option Date); provided further that to the extent that the Borrower shall not have so reinvested. The used such Net Cash Proceeds to fund a Deleveraging Event or to reinvest in accordance with clause (A) above or this clause (B), such Net Cash Proceeds shall otherwise be applied in accordance with the terms of this Section 2.5(a), and (C) any such Net Cash Proceeds need not be applied to such prepayment until the aggregate amount thereof from all transactions covered by this Section 2.5(a) not applied in accordance with the immediately preceding clauses (A) and (B) exceeds $1,000,000 in the aggregate, and any amount reinvested or used to fund Deleveraging Events hereunder shall not be included in determining the amount of any required prepayment of the Loans under this Section 2.5(a). Notwithstanding anything to the contrary contained herein or elsewhere in this Agreement, it is agreed that with respect to the 50% of the Net Cash Proceeds received by Holdings and its Subsidiaries after the Second Amendment Effective Date and prior to the Discounted Purchase Option Date in connection with the Disposition of any Scheduled Unencumbered Asset, (the “Restricted Proceeds”), (1) prior to the Discounted Purchase Option Date the Borrower may only utilize such Restricted Proceeds to fund Discounted Purchases, and (2) from and after the Discounted Purchase Option Date, the Borrower and its Subsidiaries may only utilize such Restricted Proceeds in accordance with the terms of Section 5.19; provided that the receipt of scheduled principal payments on any receivables included in the Scheduled Unencumbered Assets will not constitute Net Cash Proceeds or Restricted Proceeds.
(b) The Borrower shall, within five (5) Business Days following the receipt by Holdings or its Subsidiaries of any Net Cash Proceeds in connection with (i) any Incurrence of Indebtedness of Holdings or its Subsidiaries that is not permitted Indebtedness pursuant to Section 6.2 or (ii) any Incurrence of Indebtedness for borrowed money that is secured, directly or indirectly, by Unencumbered Real Property (including the Equity Interests of any Group Member that owns any Unencumbered Real Property), make a mandatory prepayment of the Loans in an amount equal to 100% of such Net Cash Proceeds.
(c) The Borrower shall, within five (5) Business Days following the receipt by Holdings or its Subsidiaries of any Net Equity Proceeds (other than Net Equity Proceeds received in connection with a Qualifying IPO if the Borrower elects to consummate the Conversion Option with respect to any of the TLC, the application of which shall be governed by Section 2.5(d)), make a mandatory prepayment of the Loans in an amount equal to 50% of such Net Equity Proceeds.
(d) If at any time during the eighteen-month period following the Effective Date (the “Option Period”) the Borrower consummates a Qualifying IPO, the Borrower shall with respect to the TLC of any TLC Lender, at the election of such TLC Lender or the Borrower, on the date of the consummation of such Qualifying IPO, consummate the Conversion Option with respect to the TLC of such TLC Lender and on the date of receipt of the Net Equity Proceeds of such Qualifying IPO, make a mandatory prepayment of the remaining Loans (other than Loans cancelled pursuant to this clause (d)) in an amount necessary to repay all outstanding Loans after giving effect to the consummation of the Conversion Option. All TLB and TLC held by the Company or any Affiliate or Subsidiary of the Company, including SPV Purchaser, shall immediately and automatically without further action, be deemed cancelled and satisfied and cease to be outstanding for any purpose upon consummation of a Qualifying IPO in connection with which the Conversion Option has been exercised with respect to any or all of the TLC.
(e) The Borrower shall give prior written notice of any mandatory prepayment required under this Section 2.5 (including the date and an estimate of the aggregate amount of such mandatory prepayment) at least three (3) Business Days prior thereto; provided that the failure to give such notice shall not relieve the Borrower of its obligation to make such mandatory prepayments on or prior to the dates set forth in this Section 2.5 and the Borrower shall be permitted to make such mandatory prepayments on or prior to such dates.
(i) Each prepayment of the Loans made by the Borrower pursuant to Section 2.5 shall be applied pro rata to the outstanding principal amount of the Loans irrespective of whether such outstanding Loans are ABR Loans or Eurodollar Loans; provided that, subject to the terms in the immediately succeeding clause (ii), (A) each Lender entitled to receive any mandatory prepayment of its Loans under this clause (i) (other than a mandatory prepayment pursuant to Section 2.5(d), and except as provided in clause (iii) below as to the SPV Purchaser) may waive its right to receive any such prepayment, and the aggregate amount of such prepayments so waived shall be offered to the Lenders that did not waive their rights to such prepayments for application in accordance with this clause (i) and (B) if no Lender waives its right to receive any such prepayment, the amount of such prepayment shall be applied first to the outstanding Term ABR Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied full extent thereof before application to the Revolving Loans. If Bank so requestsEurodollar Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.14; provided, all proceeds further, that, to the extent any portion of such Disposition or Event of Loss aggregate amount remains unapplied after such offer, the Borrower shall be deposited with Bank (or its agent) and held by it in the Collateral Account permitted to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring retain such Propertyamounts.
(ii) If after So long as the Closing Date Administrative Agent has received prior written notice from the Borrower or any Subsidiary shall issue new equity securities of a mandatory prepayment that may be waived by the Lenders pursuant to the immediately preceding clause (whether common or preferred stock or otherwisei), other than equity securities issued the Administrative Agent shall provide notice of such mandatory prepayment to the Lenders. Unless the Administrative Agent shall otherwise so provide, in connection with the exercise event a Lender does not notify the Administrative Agent in writing of employee stock options, Borrower shall promptly notify Bank its waiver of the estimated Net Cash Proceeds right to receive;
(A) its pro rata share of such issuance mandatory prepayment; and
(B) its pro rata share (such pro rata share to be received based on the percentage obtained by or for dividing the account principal amount of Borrower or Loans held immediately prior to such Subsidiary mandatory prepayment by such Lender by the aggregate principal amount of Loans held immediately prior to such mandatory prepayments by the Lenders that do not waive their right to receive a portion of the mandatory prepayment described in respect thereof. Promptly upon receipt by Borrower or such Subsidiary this clause (B)) of Net Cash Proceeds any portion (if any) of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such mandatory prepayment shall that may be applied in such amounts and to such Obligations as agreed to waived by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan DocumentsLenders.
(iii) If after Notwithstanding anything contained in this Section 2.5 to the Closing Date Borrower or contrary, the SPV Purchaser has irrevocably waived, and hereby does irrevocably waive, the right to receive its pro rata share of any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted mandatory prepayments of principal by Section 7.1, Borrower shall promptly notify Bank the Borrower. within two (2) Business Days of the estimated Net Cash Proceeds providing of such issuance to be received notice by or for the account Administrative Agent, the Administrative Agent may assume that such Lender will receive its applicable pro rata share of such mandatory prepayment and such portion (if any) of such mandatory prepayment that has actually been waived by the Lenders. It is understood and agreed by Holdings and the Borrower or such Subsidiary in respect thereof. Promptly upon that, notwithstanding receipt by Borrower or the Administrative Agent of any such Subsidiary of Net Cash Proceeds of such issuancemandatory prepayment, Borrower the Loans shall prepay not be deemed repaid, unless otherwise consented to by the Obligations in an aggregate amount equal Administrative Agent, until three Business Days have elapsed from the delivery to 100% the Administrative Agent of the amount notice described in Section 2.5(d).
(g) In the event the Borrower is required to prepay any Loans as a result of such Holdings receiving Net Equity Proceeds (including proceeds of a Qualifying IPO) or Net Cash Proceeds. Each , Holdings shall cause such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance proceeds to be received by or made available to the Borrower to the extent necessary for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the to satisfy its Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentshereunder.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
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Mandatory Prepayments. (i%4) If Borrower or any Subsidiary In the event and on such occasion that the aggregate Revolving Exposures exceed the aggregate Revolving Commitments, the applicable Borrowers shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank prepay Revolving Borrowings of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andClass or, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds if applicable, Swingline Loans of such Disposition or Event of LossClass (or, Borrower shall prepay if no such Borrowings are outstanding, deposit cash collateral in an account with the Obligations Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal to such excess; provided that if any such excess shall result from a change in the applicable exchange rates relating to Alternative Currencies, then such prepayment and/or cash collateralization shall only be required to be made by the applicable Borrowers upon one Business Day’s notice from the Administrative Agent. (%4) Other than during a Covenant Suspension Period, (A) if the Parent Entity or any Restricted Subsidiary receives any Net Cash Proceeds from any Asset Sale or Casualty Event, the Borrower Agent shall apply an amount equal to 100% of such Net Cash Proceeds to prepay the amount Term Loans in accordance with Section 2.10(b)(v) on or prior to the date that is ten (10) Business Days after the date of all the realization or receipt of such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment shall be required pursuant to this Section 2.10(b)(ii)(A) with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace that the Parent Entity or restore the relevant Property any Restricted Subsidiary shall reinvest in accordance with Section 2.10(b)(ii)(B); provided that to the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in extent required by the aggregate so long as no Default or Event of Default then exists, and (z) in the case terms of any Disposition not covered Permitted Secured Notes that are secured by clause (y) aboveLiens subject to the First Lien Intercreditor Agreement, so long as no Default or Event the Borrower Agent may, in lieu of Default then exists, if Borrower states in its notice prepaying Term Loans with such portion of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar of any Asset Sale or Casualty Event, apply a portion of such Net Cash Proceeds (based on the respective principal amounts at such time of (A) such Permitted Secured Notes and (B) the Term Loans) to repurchase or redeem Permitted Secured Notes that are secured by Liens subject to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect First Lien Intercreditor Agreement with the remaining amount of such Net Cash Proceeds to the extent such be applied to prepay Term Loans; and (B) with respect to any Net Cash Proceeds are actually reinvested in such similar assets realized or received with such 90 day period. Promptly after respect to any Asset Sale or Casualty Event, at the end option of such 90 day periodthe Borrower Agent, Borrower shall notify Bank whether Borrower the Parent Entity or such any Restricted Subsidiary has reinvested may reinvest all or any portion of such Net Cash Proceeds in such similar assets, and, to assets useful for the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount Parent Entity’s or a Restricted Subsidiary’s business within (x) twelve (12) months following receipt of such Net Cash Proceeds or (y) if the Parent Entity or a Restricted Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, within six (6) months following the last day of such twelve month period; provided that any such Net Cash Proceeds that are not so reinvested. The amount of each such prepayment reinvested within the applicable time period set forth above shall be applied first as set forth in Section 2.10(b)(ii)(A) within five (5) Business Days after the end of the applicable time period set forth above. (%4) If, following the Effective Date, the Parent Entity or any Restricted Subsidiary incurs or issues (x) any Refinancing Indebtedness or (y) any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 6.01 (without prejudice to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwiserestrictions therein), other than equity securities issued in connection with the exercise of employee stock options, Borrower Borrowers shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in apply an aggregate amount equal to 100% of such Net Cash Proceeds received by the amount Parent Entity or any Restricted Subsidiary therefrom to the prepayment of the Term Loans in accordance with Section 2.10(b)(v) on or prior to the date which is three (3) Business Days after the receipt of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
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Mandatory Prepayments. (i) If [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of the greater of $610,000,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall apply (or cause to be applied) 100% of such Net Proceeds of such Prepayment Asset Sale or Net Insurance/Condemnation Proceeds received with respect thereto in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of, and accrued interest on, the 2024 Initial Term Loans and, the 2024 Incremental Delayed Draw First Term Out Term Loans, the 2024 Incremental Delayed Draw Second Term Out Term Loans and any Subsidiary Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that:
(A) it is understood that only the amount in excess of the De Minimis Proceeds Threshold shall at any time or from time be required to time make or agree be applied to make a Disposition or shall suffer an Event of Loss prepayment in accordance with respect this Section 2.11(b)(ii);
(B) if prior to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require date on which any such prepayment with respect is required to Net Cash be made, the Borrower notifies the Administrative Agent of its intention to reinvest the applicable Subject Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days business of the applicable Disposition, the Net Borrower and/or any Restricted Subsidiary (other than an investment in Cash Proceeds thereof in assets similar to the assets which were subject to such Dispositionor Cash Equivalents), then the Borrower shall not be required to make a mandatory prepayment under this subsection clause (ii) in respect of such Net Cash the applicable Subject Proceeds to the extent such Net Cash (1) the applicable Subject Proceeds are actually so reinvested in within 18 months following receipt thereof, or (2) the Borrower or any Restricted Subsidiary has committed to so reinvest the applicable Subject Proceeds during such similar assets with such 90 day period. Promptly 18 month period and the applicable Subject Proceeds are so reinvested within six months after the end expiration of such 90 day period, Borrower shall notify Bank whether 18-month period or (3) the Borrower or such any Restricted Subsidiary has committed to so reinvest the applicable Subject Proceeds during such 18 month period and such commitment is terminated and a new commitment is made within the six months after the expiration of such 18 month period and the applicationble Subject Proceeds are so reinvested within three months after the expiration of such Net Cash Proceeds in such similar assets, and, to 24 month period; it being understood that if the extent such Net Cash applicable Subject Proceeds have not been so reinvestedreinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Obligations Subject Loans with the amount of applicable Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); and
(C) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or repurchase any other First Lien Debt pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (C)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Loans incurred in reliance on clause (b) of the definition of “Incremental Cap” to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred in reliance on clause (b) of the definition of “Incremental Cap”, to refinance all or a portion of the Loans in accordance with the requirements of the definition thereof, in each case to the extent required by the terms thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than two Business Days thereafter) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply (or cause to be applied) an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay (or cause to be prepaid) any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or any Domestic Subsidiary of any Foreign Subsidiary (any such Person, a “Specified Subsidiary”) or the relevant Net Insurance/Condemnation Proceeds are received by any Specified Subsidiary, as the case may be, for so long as the repatriation and/or other transfer to the Borrower of any such amount at the time such prepayment would otherwise be required to be made would be, in the good faith determination of the Borrower, prohibited, restricted or delayed under any Requirement of Law (including for the avoidance of doubt, any Requirement of Law relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on “upstreaming” and/or “cross-streaming” of Cash intra-group and Requirements of Law relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons) of the Borrower and/or any of its Restricted Subsidiaries) or would conflict with the fiduciary and/or statutory duties of such Specified Subsidiary’s directors (or equivalent Persons), or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Specified Subsidiary;
(B) the Borrower shall not be required to prepay (or cause to be prepaid) any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the distribution and/or other transfer to the Borrower of such Subject Proceeds would, in the good faith determination of the Borrower, be prohibited at the time such prepayment would otherwise be required to be made under the Organizational Documents (or any relevant shareholders’ or similar agreement) governing such joint venture;
(C) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any Foreign Subsidiary that is not a Loan Party, in each case, for so long as the Borrower determines in good faith that the distribution to the Borrower of such Subject Proceeds would be prohibited at the time such prepayment would otherwise be required to be made under an agreement permitted pursuant to Section 6.05 by which such Foreign Subsidiary is bound governing any Indebtedness; and
(D) if the Borrower determines in good faith that the repatriation (or other intercompany distribution or transfer) to the Borrower, directly or indirectly, from a Specified Subsidiary as a distribution or dividend (or other intercompany transfer) of any amount required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would reasonably be expected to result in a material and adverse Tax liability (including any withholding Tax) being incurred by Holdings, the Borrower, any Parent Company and/or any Restricted Subsidiary (such amount, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount;
(v) Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”); provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of (1) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (2) Incremental Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (3) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c) and/or (4) Incremental Equivalent Debt incurred to refinance all or a portion of the Loans in accordance with the requirements of the definition thereof. If any Lender fails to deliver a written notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
(vi) Except as otherwise contemplated by this Agreement or provided in, or intended with respect to, any Refinancing Amendment, any Incremental Facility Amendment, any Extension Amendment or any Replacement Debt (provided that such Refinancing Amendment, Incremental Facility Amendment or Extension Amendment may not provide that the applicable Class of Term Loans receive a greater than pro rata portion of any prepayment of Term Loans pursuant to Section 2.11(b) than would otherwise be permitted by this Agreement), in each case effectuated or issued in a manner consistent with this Agreement, each prepayment of Term Loans pursuant to Section 2.11(b) shall be allocated to prepay any Class of Term Loans as directed by the Borrower or, in the absence of such direction, ratably to each Class of Term Loans then outstanding that is pari passu with the Initial2024 Term Loans in right of payment and with respect to security (provided that any prepayment of Term Loans with the Net Proceeds of any Incremental Term Facility incurred in reliance on clause (b) of the definition of “Incremental Cap” to extend the Maturity Date of all or any portion of any Class of Term Loans pursuant to Section 2.22, Incremental Equivalent Debt incurred in reliance on clause (b) of the definition of “Incremental Cap” to extend the Maturity Date of all or any portion of any Class of Term Loans and/or any Replacement Term Loan shall be applied to the applicable Class of Term Loans being extended, refinanced or replaced, as applicable). With respect to each relevant Class of Term Loans, any accepted prepayment under this Section 2.11(b) shall be applied against the remaining scheduled installments of principal due in respect of such Class of Term Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments in respect of the Term Loans of such Class in direct order of maturity), and each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage of the applicable Class. If no Lender exercises the right to decline a prepayment of the Term Loans pursuant to Section 2.11(b)(v), the amount of such Net Cash Proceeds not so reinvested. The amount of each such mandatory prepayment shall be applied first to the then outstanding Term Loans until paid in of the relevant Class that are ABR Loans to the full extent thereof and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds outstanding Term Loans of such Disposition or Event Class that are Term SOFR Loans in a manner that minimizes the amount of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account any payment required to be disbursed made by the Borrower pursuant to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertySection 2.16.
(iiA) If after In the Closing Date Borrower or event that the aggregate Revolving Credit Exposure of any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with Class exceeds the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds Total Revolving Credit Commitment of such issuance to be received by or for Class then in effect, the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date within five Business Days of receipt of notice from the Revolving Credit Commitment is reduced pursuant to Section 2.13Administrative Agent, prepay the Revolving Loans andor Swingline Loans and/or reduce LC Exposure, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary in an aggregate amount sufficient to reduce the sum such aggregate Revolving Credit Exposure as of the aggregate principal date of such payment to an amount not to exceed 100% of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reducedof such Class then in effect by taking any of the following actions as it shall determine at its sole discretion: (I) prepayment of Revolving Loans and/or Swingline Loans in accordance with Section 2.11(a)(ii) and/or (II) with respect to any excess LC Exposure, provide Letter of Credit Support with respect thereto.
(viA) If at Each prepayment of any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding Loan Borrowing under this Section 2.11(b)(vii) shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied paid to the Revolving Loans until paid Lenders in full accordance with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent their respective Applicable Percentages of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceededapplicable Class.
(viii) Unless Borrower otherwise directs, prepayments of Loans Prepayments made under this Section 2.8(b2.11(b) shall be applied first to (A) accompanied by accrued interest as required by Section 2.13 (which may, at the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction election of the Revolving Commitment); provided that Borrower, be netted in the proceeds from the divestiture calculation of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇applicable prepayment amount (and in the event such election is made, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ the amount of the applicable prepayment of principal and the amount of such accrued interest shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made determined by the payment of Borrower in good faith in consultation with the principal amount Administrative Agent)) and (B) subject to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.32.16.
Appears in 1 contract
Sources: Credit Agreement (First Watch Restaurant Group, Inc.)
Mandatory Prepayments. (a) Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral, the respective Borrowing Group shall repay the Advances in an amount equal to the Net Proceeds of such sale, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent provided, however, that this Section 2.21(a) shall not apply to any disposition of Collateral consisting of Equipment which results in Net Proceeds of not more than $500,000 in the aggregate in any fiscal year. Notwithstanding the foregoing, unless and until an Event of Default has occurred and is continuing, Borrowers shall not be so required to use the Net Proceeds from any disposition of Equipment to prepay Advances to the extent such Net Proceeds are used to replace, repair or restore Equipment used in such Loan Parties’ business, provided that (i) If such replacement Equipment to be purchased has a fair market value equal to or greater than the fair market value of the Equipment which was sold, (ii) replacement Equipment is purchased by the applicable Borrower or any Subsidiary within one hundred and eighty (180) days of the Equipment sale, (iii) the replacement Equipment shall at any be subject to Agent’s security interest created hereunder and (iv) until such time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank as the proceeds of such proposed Disposition or Event disposal are used to acquire such replacement Equipment, such proceeds shall be applied as a repayment of Loss (including Revolving Advances and an Eligible Reserve in the amount of such repayment shall be established. Such Eligible Reserve shall be released by Agent only in connection with the estimated Net Cash Proceeds making of a Revolving Advance to be received used by Borrower the Borrowers solely for the purposes of funding the acquisition of replacement Equipment pursuant to the terms of this Section 2.21(a); provided, however, that nothing contained herein shall waive or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower modify any conditions to the making of Revolving Advances or such Subsidiary any other provisions of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection Agreement. The foregoing shall not require be deemed to be implied consent to any such prepayment sale otherwise prohibited by the terms and conditions hereof. Any repayments required pursuant to this Section 2.21(a), other than a repayment of Revolving Advances done in connection with respect to Net Cash Proceeds received on account the establishment of an Event of Loss so long Eligible Reserve, shall be held as such Net Cash Proceeds are cash collateral and then applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (za) in the case of any Disposition not covered by clause US Borrower, (x) first, to the outstanding principal installments of Term Loan A in the inverse order of the maturities thereof, (y) abovesecond, so long to the remaining Advances (other than Term B Loans) in such order as Agent may determine (together with a corresponding permanent reduction in the Maximum Revolving Advance Amount and the Maximum US Revolving Advance Amount), and (z) third, to the outstanding principal amount of Term Loan B-US, and (b) in the case of any Foreign Borrower, (x) first, to Advances (other than Term Loan B) extended to Foreign Borrowers in such order as Agent may determine (together with a corresponding permanent reduction in the Maximum Foreign Revolving Advance Amount), and (y) second, to the outstanding principal amount of Term Loan B-Foreign, provided, however, that in no Default or event shall there be any application of such cash collateral to any Eurodollar Rate Loans until the expiration of the applicable Interest Period for such Loan. To the extent there are no outstanding Advances, all cash collateral shall be released to the relevant Borrowers unless an Event of Default has occurred which is then existscontinuing. Subject to the terms and provisions of this Agreement, if Borrower states Borrowers may reborrow Revolving Advances repaid hereunder in its notice accordance with the terms hereof.
(b) In the event any Loan Party (other than SGS) receives proceeds in connection with the issuance or incurrence of any Indebtedness other than Indebtedness permitted under Section 7.5, or any Loan Party (other than SGS) receives the proceeds of any cash equity investment other than the Ares Transaction, the respective Borrowing Group shall repay the Advances in an amount equal to the Net Proceeds thereof, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such event that Net Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be an implied waiver of the provisions of Section 7.5 or 10.14 hereof, nor any consent to any such issuance of equity to the extent otherwise prohibited by the terms and conditions hereof. Such repayments shall be held as cash collateral and then applied (a) in the case of any US Borrower or any Guarantor incorporated in the relevant Subsidiary intends United States of America or Stream BV, (i) first, to reinvestthe Revolving Advances extended to US Borrowers in such order as Agent may determine, within 90 days (ii) second, to the outstanding principal installments of Term Loan A in the inverse order of the maturities thereof, and (iii) third, to the outstanding principal amount of the Term Loan B-US and (b) in the case of any Foreign Borrower or Guarantor incorporated other than in the United States of America (other than Stream BV), (i) first, to the Revolving Advances extended to Foreign Borrowers in such order as Agent may determine, and (ii) second, to the outstanding principal amount of the Term Loan B-Foreign, provided, however, that in no event shall there be any application of such cash collateral to any Eurodollar Rate Loans until the expiration of the applicable DispositionInterest Period for such Loan. To the extent there are no outstanding Advances, all cash collateral shall be released to the relevant Borrowers, unless an Event of Default has occurred which is then continuing. Subject to the terms and provisions of this Agreement, Borrowers may reborrow Revolving Advances repaid in accordance with the terms hereof.
(c) In the event any Loan Party (other than SGS) receives any Extraordinary Receipts, the Net Cash Proceeds thereof applicable Borrowing Group shall repay the Advances in assets similar an amount equal to the assets Net Proceeds thereof, net of any reasonable expenses incurred in collecting such Extraordinary Receipts; such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent, provided, however, that this Section 2.21(c) shall not apply to any Extraordinary Receipts, other than Excess Refunds (as defined in the definition of Extraordinary Receipts), which were subject to such Dispositionresult in Net Proceeds of not more than $500,000 in the aggregate in any fiscal year. Notwithstanding the foregoing, then Borrower unless and until an Event of Default has occurred and is continuing, Borrowers shall not be so required to make a mandatory prepayment under this subsection use Net Proceeds consisting of insurance proceeds or condemnation awards in respect of such Net Cash Proceeds Equipment to prepay the Advances to the extent such Net Cash Proceeds are actually reinvested used to replace, repair or restore Equipment used in such similar assets with Loan Party’s business, provided that (i) replacement Equipment is purchased by the applicable Borrower within one hundred and eighty (180) days of the Equipment sale, (ii) the replacement Equipment shall be subject to Agent’s security interest created hereunder and (iii) until such 90 day period. Promptly after time as the end proceeds of such 90 day perioddisposal are used to acquire such replacement Equipment, Borrower such proceeds shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations be applied as a repayment of Revolving Advances and an Eligible Reserve in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment repayment shall be applied first established. Such Eligible Reserve shall be released by Agent only in connection with the making of a Revolving Advance to be used by the Borrowers solely for the purposes of funding the acquisition of replacement Equipment pursuant to the outstanding Term Loans until paid in full and then terms of this Section 2.21(c); provided, however, that nothing contained herein shall waive or modify any conditions to the making of Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower Advances or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwiseother provisions of this Agreement. Any repayments required pursuant to this Section 2.21(a), other than equity securities issued a repayment of Revolving Advances done in connection with the exercise establishment of employee stock optionsan Eligible Reserve, such repayments shall be held as cash collateral and then applied (i) in the case of any US Borrower shall promptly notify Bank and any US Guarantor, (x) first, to the outstanding principal installments of Term Loan A in the inverse order of the estimated Net Cash Proceeds of such issuance maturities thereof, (y) second, to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied remaining Advances (other than Term Loan B) in such amounts and to such Obligations order as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 Agent may determine (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid andwith, in the case of prepayments made with the Net Proceeds of any Term LoansCollateral not included in the calculation of the Formula Amount (on the Closing Date), accrued interest thereon a corresponding permanent reduction in the Maximum Revolving Advance Amount and the Maximum US Revolving Advance Amount), and (z) third, to the date outstanding principal amount of prepayment together Term Loan B-US, and (ii) in the case of any Foreign Borrower and any Foreign Guarantor, (x) first, to the Advances (other than Term Loan B) extended to Foreign Borrowers in such order as Agent may determine (with, in the case of prepayments made with the Net Proceeds of any amounts due Bank under Collateral not included in the calculation of the Formula Amount (on the Closing Date), a corresponding permanent reduction in the Maximum Foreign Revolving Advance Amount applicable to such Foreign Borrower), and (y) second, to the outstanding principal amount of Term Loan B-Foreign, provided, however, that (A) subject in each case to the consent of Required Revolving Lenders at such time, in lieu of, in the case of clauses (i)(y) and/or (ii)(x) of this Section 3.32.21(c), permanently reducing the Maximum Foreign Revolving Advance Amount to the extent of prepayments made with Net Proceeds, Agent may, in its sole discretion, elect to repay Advances (other than Term Loan B) extended to Foreign Borrowers by an amount equal to 50% of such Net Proceeds and apply the remaining 50% to the outstanding principal amount of Term Loan B-US or Term Loan B-Foreign, as applicable, and (B) in no event shall there be any application of such cash collateral to any Eurodollar Rate Loans until the expiration of the applicable Interest Period for such Loan. To the extent there are no outstanding Advances, all cash collateral shall be released to the relevant Borrowers unless an Event of Default has occurred which is then continuing. Subject to the terms and provisions of this Agreement, Borrowers may reborrow Revolving Advances repaid hereunder in accordance with the terms hereof.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.)
Mandatory Prepayments. (ia Without limiting the requirements of Section 7.5 hereof regarding the consent of Majority US Lenders to sales of property by Restricted Persons which are not permitted by Section 7.5, the proceeds of any sale of property (net of all reasonable costs and expenses, but excluding proceeds consisting of tangible property to be used in the business of Restricted Persons) by any Restricted Person (other than a sale of property permitted under Section 7.5 hereof) shall be placed in a collateral account under the control of Administrative Agent in a manner satisfactory to Administrative Agent immediately upon such Restricted Person's receipt of such proceeds and maintained therein for a period of ninety (90) days following the date of receipt thereof in cash (in this Section 2A.7(a) referred to as the "Collateral Period"). If Borrower any consideration consists of an instrument or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss security, the Collateral Period shall, with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the each amount of the estimated Net Cash Proceeds to be cash received by Borrower or such Subsidiary in respect thereof, continue until ninety (90) and, promptly upon days following such Restricted Person's receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event cash unless, pursuant to the following sentence, an approved investment included such cash; any cash in a collateral account may be invested in Cash Equivalents designated by US Borrower. During each Collateral Period, US Borrower may propose to invest such proceeds in other property subject to the approval of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then existsMajority US Lenders, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of shall thereafter invest such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested proceeds in such similar assets with such 90 day periodproperty so approved by Majority US Lenders. Promptly after At the end of each Collateral Period or, if an investment is so proposed and approved during such 90 day periodCollateral Period, Borrower shall notify Bank whether Borrower or within one hundred-eighty (180) days after such Subsidiary proposed investment has reinvested been so approved by Majority US Lenders, any such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds proceeds which have not been so reinvested, invested by US Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requestsreduction of the outstanding principal balance of the US Loans at such time, all proceeds of such Disposition or Event of Loss and the US Commitment shall be deposited with Bank (or its agent) and held reduced by it in an amount equal to the Collateral Account prepayment applied to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertyUS Loans.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) b If at any time the sum of US Facility Usage exceeds the unpaid principal balance of US Commitment (whether due to a reduction in the Revolving Loans and the L/C Obligations then outstanding shall be US Commitment in excess of the Borrowing Base as then determined and computedaccordance with this Agreement, or otherwise), US Borrower shall immediately and without notice or upon demand pay over prepay the amount principal of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving US Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the an amount of the excess at least equal to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstandingexcess. Each prepayment of Loans principal under this Section 2.8(b) section shall be made accompanied by the payment of all interest then accrued and unpaid on the principal amount so prepaid. Any principal or interest prepaid pursuant to this section shall be in addition to, and not in lieu of, all payments otherwise required to be prepaid and, in paid under the case Loan Documents at the time of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3such prepayment.
Appears in 1 contract
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to after the Closing Date any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Group Member receives any Net Cash Proceeds to be received by Borrower from the Incurrence of any Indebtedness (other than Excluded Indebtedness) or such Subsidiary in respect thereof) andthe issuance of any Disqualified Capital Stock, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Term Loans on a pro rata basis on the date of such receipt in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided provided, that (x) so long as no Default or Event if at the time of Default then exists, this subsection shall not require any such prepayment with respect such Group Member is required to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied prepay any Other Applicable Indebtedness (to replace or restore the relevant Property in accordance with extent and if required by the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days terms of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to definitive documentation governing such Dispositionother Indebtedness), then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect may apply 100% of such Net Cash Proceeds to prepay the extent Term Loans and prepay, redeem or repurchase such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after Other Applicable Indebtedness on a pro rata basis on the end date of such 90 day periodreceipt; provided, Borrower further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall notify Bank whether Borrower be at par (or less than par), (B) the portion of such Subsidiary has reinvested prepayment amount allocated to such Net Cash Proceeds in Other Applicable Indebtedness shall not exceed the amount required to be allocated to such similar assetsOther Applicable Indebtedness pursuant to the terms thereof, and, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(a) shall be reduced accordingly and (D) to the extent the holders of such Net Cash Proceeds Other Applicable Indebtedness decline to have not been so reinvestedsuch Indebtedness prepaid, Borrower redeemed or repurchased, the declined amount shall promptly prepay (and in any event within 10 Business Days after the Obligations in the amount date of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first rejection) be applied to prepay the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited Term Loans in accordance with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Propertyterms hereof.
(iib) If at any time after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Group Member receives any Net Cash Proceeds of such issuance to be received by from any Asset Sale or for Recovery Event in an amount exceeding $10,000,000 in any fiscal year, then, the account of Borrower or such Subsidiary shall (i) if no Reinvestment Notice shall have been delivered in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds , prepay the Term Loans on a pro rata basis on the third Business Day following the date of such issuance, Borrower shall prepay the Obligations receipt in an aggregate amount equal to 100% of such excess Net Cash Proceeds or (ii) if a Reinvestment Notice has been delivered in respect thereof, prepay the Term Loans in an amount equal to the Reinvestment Prepayment Amount, if any, on a pro rata basis on the Reinvestment Prepayment Date; provided, that if at the time of such prepayment the Borrower or such Group Member is required to prepay any Other Applicable Indebtedness (to the extent and if required by the terms of the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such excess Net Cash Proceeds (or the Reinvestment Prepayment Amount, as applicable) to prepay the Term Loans and prepay, redeem or repurchase such Other Applicable Indebtedness on a pro rata basis on the date of such receipt; provided, further, that (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than par), (B) the portion of such prepayment amount allocated to such Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) the amount of prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(b) shall be reduced accordingly and (D) to the extent the holders of such Net Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or repurchased, the declined amount shall promptly (and in any event within 10 Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(c) If at any time after the Closing Date, the aggregate Revolving Extensions of Credit then outstanding exceed the Revolving Commitments then in effect, the Borrower (without notice or demand) shall immediately prepay outstanding Swingline Loans or Revolving Loans and pay any unpaid Reimbursement Obligations (or, if no Swingline Loans or Revolving Loans are outstanding, Cash ProceedsCollateralize outstanding Letters of Credit) in an amount sufficient to eliminate any such excess.
(d) Mandatory prepayments of Term Loans shall be applied first to Base Rate Loans to the full extent thereof and then to Eurodollar Loans and shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. Each such prepayment shall be applied in such amounts and credited to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms remaining scheduled installments of the Loan DocumentsTerm Facilities thereof as specified by the Borrower or, if not specified, to the next eight scheduled quarterly installments of the Term Loans in direct order of maturity and thereafter to the remaining scheduled quarterly installments of the Term Loans on a pro rata basis.
(iiie) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, The Borrower shall promptly notify Bank provide the Administrative Agent written notice of the estimated Net Cash Proceeds any mandatory prepayment of such issuance Term Loans required to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced made pursuant to Section 2.134.2(a) and (b), prepay three (3) Business Days (or with respect to any mandatory prepayments upon the Revolving Loans andIncurrence of any Permitted Pari Passu Refinancing Debt, if necessaryPermitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness pursuant to Section 4.2(a), Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
one (vi1) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, Business Day prior thereto in the case of any Term Loans, accrued interest thereon Base Rate Loans being prepaid) prior to the date of prepayment together (or such later time as the Administrative Agent may agree in its sole discretion), which notice shall specify the date and amount of prepayment; provided, that such notice may be conditioned on consummation of such mandatory prepayment event and receipt of Net Cash Proceeds thereof by the applicable Group Member. Other than with respect to mandatory prepayments upon the Incurrence of any amounts due Bank Permitted Pari Passu Refinancing Debt, Permitted Junior Refinancing Debt or other Credit Agreement Refinancing Indebtedness pursuant to Section 4.2(a), the applicable Lenders may elect not to accept any mandatory prepayment (each such Lender, a “Declining Lender”) by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m., New York City time, one Business Day prior to the date of such prepayment. Any prepayment amount declined by the Declining Lenders (the “Declined Amount”) shall be retained by the Borrower.
(f) Notwithstanding any other provisions of this Section 4.2 to the contrary, with respect to any prepayment required pursuant to Section 4.2(a) or (b), if at the time of such prepayment, the Group Member receiving the Net Cash Proceeds (i) is prohibited, restricted or delayed by applicable local law from repatriating such Net Cash Proceeds to the Borrower, the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in Section 4.2(a) or (b) but may be retained by the applicable Group Member so long, but only so long, as the applicable local law will not permit repatriation to the Borrower, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law, such repatriation will be effected and such repatriated Net Cash Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to Section 3.34.2(a) or (b) to the extent provided therein or (ii) cannot repatriate such funds to the Borrower without (in the good faith determination of the Borrower) the repatriation of such Net Cash Proceeds (or a portion thereof) that would otherwise be required to be applied pursuant to Section 4.2(a) or (b) resulting in material adverse tax consequences, the Net Cash Proceeds (or portion thereof) so affected may be retained by the applicable Group Member (the Borrower hereby agrees to cause the applicable Group Member to promptly use commercially reasonable efforts to take all actions within the reasonable control of the Borrower that are reasonably required to eliminate such tax effects) until such time as such material adverse costs would not apply to the repatriation thereof, at which time the mandatory prepayments otherwise required by Section 4.2(a) or (b) with respect to such Net Cash Proceeds shall be made.
Appears in 1 contract
Sources: Credit Agreement (IAA, Inc.)
Mandatory Prepayments. (ia) If On each occasion that an Asset Sale Prepayment Event or Casualty Event occurs, the Borrower shall, within ten Business Days after the occurrence of such Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within ten Business Days after the Deferred Net Cash Proceeds Payment Date), subject to the reinvestment rights in the definition of Net Cash Proceeds and Section 6.03(d), prepay, in accordance with clause (e) below, Loans with an equivalent principal amount equal to 100% of the Net Cash Proceeds from such Prepayment Event; provided, further, that, with respect to the Net Cash Proceeds of an Asset Sale Prepayment Event or any Subsidiary shall at any time or from time Casualty Event, in each case solely to time make or agree to make a Disposition or shall suffer an Event of Loss the extent with respect to any PropertyCollateral, then the Borrower shall promptly notify Bank may use a portion of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received prepay or repurchase Indebtedness (and with such prepaid or repurchased Indebtedness permanently extinguished) with a Lien on the Collateral ranking equal with, or senior to, the Liens securing the Obligations to the extent any such Indebtedness requires the issuer of such Indebtedness to prepay or make an offer to purchase such Indebtedness with the proceeds of such Prepayment Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Indebtedness with a Lien on the Collateral ranking equal with, or senior to, the Liens securing the Obligations and with respect to which such a requirement to prepay or make an offer to purchase exists and the denominator of which is the sum of the outstanding principal amount of such Indebtedness and the outstanding principal amount of Loans.
(b) On each occasion that Indebtedness is issued or incurred pursuant to Section 6.01(bb), the Borrower or such Subsidiary in respect thereof) and, promptly upon shall within three Business Days of receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of LossIndebtedness prepay, Borrower shall prepay the Obligations in an aggregate accordance with clause (e) below, Loans with a principal amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account from such issuance or incurrence of Indebtedness.
(i) On an Event occasion that the Initial Public Offering occurs, the Borrower shall within ten Business Days of Loss so long as receipt of the Cash Net Equity Proceeds of such Net Cash Proceeds are applied to replace or restore the relevant Property Initial Public Offering prepay, in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (ye) abovebelow, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make Loans with a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate principal amount equal to 100% of such Cash Net Equity Proceeds from such Initial Public Offering and (ii) on each occasion that an Equity Issuance Prepayment Event occurs, the amount Borrower shall, within ten Business Days receipt of the cash net equity proceeds of such Net Cash Proceeds. Each such prepayment shall be applied Equity Issuance Prepayment Event prepay, in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 accordance with clause (Maintenance of Subsidiariese) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Moneybelow, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate Loans with a principal amount equal to 100% of such Cash Net Equity Proceeds from such issuance.
(d) Notwithstanding any other provisions of this Section 2.04, (A) to the extent that any or all of the Net Cash Proceeds of any Prepayment Event giving rise to a prepayment pursuant to clause (a) above received by a Foreign Subsidiary are prohibited or delayed by any applicable law from being repatriated, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Loans at the times provided in clause (a) above, as the case may be, but only so long, as the applicable law will not permit repatriation (the Obligors hereby agreeing to promptly take all actions reasonably required by the applicable law to permit repatriation), and once a repatriation of any of such affected Net Cash Proceeds is permitted under the applicable law, an amount equal to such Net Cash Proceeds will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the repayment of the Loans pursuant to clause (a) above and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds would have a material adverse tax consequence with respect to such Net Cash Proceeds. Each , an amount equal to the Net Cash Proceeds so affected may be retained by the applicable Foreign Subsidiary; provided that in the case of this clause (B), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to clause (a) above (x) the Borrower shall apply an amount equal to such prepayment Net Cash Proceeds to such reinvestments as if such Net Cash Proceeds had been received by the Obligors rather than such Foreign Subsidiary, less the amount of any taxes that would have been payable or reserved against if such Net Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds shall be applied to the repayment of Indebtedness. For the avoidance of doubt, nothing in such amounts and this Agreement, including Section 2.04 shall be construed to such Obligations as agreed require any Foreign Subsidiary to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsrepatriate cash.
(ive) If after Subject to Section 2.04(g), each prepayment of Loans required by Section 2.04 shall be allocated pro rata among the Closing Date Borrower or any Subsidiary Initial Term Loans and the New Term Loans based on the applicable remaining outstanding amount due thereunder and shall issue any Subordinated Debt, Borrower shall promptly notify Bank be applied within each Class of the estimated Net Cash Proceeds Loans in respect of such issuance Loans in direct order of maturity thereof or as otherwise directed by the Borrower. Subject to be received by or Section 2.04(g), with respect to each such prepayment, the Borrower will, not later than the date specified in Section 2.04(a) for making such prepayment, give the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Administrative Agent written notice which shall prepay the Obligations in an aggregate amount equal to 100% include a calculation of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to each Class of Loans requesting that the Revolving Administrative Agent provide notice of such prepayment to each Lender of Initial Term Loans until paid in full or the Euro Sublimit is no longer exceededLender of New Term Loans, as applicable.
(viiif) Unless Borrower otherwise directs, prepayments With respect to each prepayment of Loans under this required by Sections 2.04(a)-(c), the Borrower may, if applicable, designate the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made; provided, that if any Lender has provided a Rejection Notice in compliance with Section 2.8(b) 2.04(g), such prepayment shall be applied first with respect to the Term Loan until paid Loans to be prepaid on a pro rata basis across all outstanding Types of such Loans in full and then proportion to the Revolving percentage of such outstanding Loans (to be prepaid represented by each such Class. In the absence of a Rejection Notice or a designation by the Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its reasonable discretion with a concurrent permanent reduction view, but no obligation, to minimize breakage costs owing under Section 2.07.
(g) The Borrower shall notify the Administrative Agent in writing of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each any mandatory prepayment of Loans under this Section 2.8(b) shall required to be made by the payment of the principal amount pursuant to be prepaid and, in the case of any Term Loans, accrued interest thereon Sections 2.04(a)-(c) at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment together and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender holding Loans of the contents of such prepayment notice and of such Lender’s pro rata share of the prepayment. Each Lender may reject all (but not less than all) of its pro rata share of any mandatory prepayment other than any such mandatory prepayment with any amounts due Bank respect to a Debt Incurrence Prepayment Event under Section 3.32.04(a) and Indebtedness under Section 2.04(b) (such declined amounts, the “Declined Proceeds”) of Loans required to be made pursuant to Sections 2.04(a)-(c) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent no later than 5:00 p.m. (New York City time) one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (CoreWeave, Inc.)
Mandatory Prepayments. (ia) If any Indebtedness shall be incurred by the Borrower or after the Closing Date (other than any Subsidiary permitted Indebtedness incurred in accordance with Section 7.2 (except for Credit Agreement Refinancing Indebtedness which shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss be applied in accordance with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss clause (including the amount iii) of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect definition thereof) and)), promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Cash Proceeds thereof shall be applied on the date of all such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.11(d).
(b) If on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, the Applicable Asset Sale Prepayment Percentage of such Net Cash Proceeds shall be applied by the Borrower on the fifth Business Day following such receipt thereof toward the prepayment of the Term Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, at the option of the Company, the Company may reinvest the Net Cash Proceeds in the business of the Company or any of its Subsidiaries within (x) 12 months following the receipt of such Net Cash Proceeds or (y) 18 months following the receipt of such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower the Company or any of its Subsidiaries shall have entered into a binding commitment within 12 months following the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect receipt of such Net Cash Proceeds to reinvest such Net Cash Proceeds in the extent business of the Company or any of its Subsidiaries (it being understood that if any portion of such Net Cash Proceeds are actually no longer intended to be reinvested in or are not reinvested within such similar assets with such 90 day period. Promptly after the end of such 90 day 18-month period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount Applicable Asset Sale Prepayment Percentage of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first by the Borrower on the fifth Business Day after the Company reasonably determines that such Net Cash Proceeds are no longer intended to be or are not reinvested within such 18-month period toward prepayment of the outstanding Term Loans until paid as set forth in full and then to the Revolving LoansSection 2.11(d)); provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in if at the Borrowing Base shall first time that any such prepayment would be applied to required, the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower Company or any Subsidiary shall issue new equity securities (whether common of its Subsidiaries is required to prepay or preferred stock or otherwise), other than equity securities issued in connection offer to repurchase with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance Asset Sale or Recovery Event any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with the Liens securing the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be received by or for offered to be so repurchased, “Other Applicable Asset Sale Indebtedness”), then the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Company may apply the Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Asset Sale Indebtedness at such time) to the prepayment of such issuance, Borrower Other Applicable Asset Sale Indebtedness; it being understood that the portion of the Net Cash Proceeds allocated to the Other Applicable Asset Sale Indebtedness shall prepay the Obligations in an aggregate amount equal to 100% of not exceed the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance required to be received by or for allocated to the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced Other Applicable Asset Sale Indebtedness pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize terms thereof (and the L/C Obligations by the remaining amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding Net Cash Proceeds shall be allocated to the amount to which Term Loans in accordance with the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans terms hereof), and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess prepayment of the Term Loans that would have otherwise been required pursuant to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to this Section 2.11(b) shall be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligationsreduced accordingly.
(viic) If at any time No later than the Dollar Equivalent fifth Business Day after the date on which the financial statements with respect to each fiscal year of the sum of Borrower are required to be delivered pursuant to Section 6.1(a), commencing with the fiscal year ending December 31, 2022, the Borrower shall prepay Term Loans in accordance with Section 2.11(d) in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Applicable ECF Prepayment Percentage of Excess Cash Flow of the total Revolving Loans in Euros exceeds Company and its Subsidiaries for the Euro SublimitExcess Cash Flow Period then most recently ended (this clause (A), Borrower shall immediately and without notice or demand pay over the amount “Base ECF Prepayment Amount”) minus (B) at the option of the excess to Bank as and for a mandatory prepayment on such ObligationsBorrower, with each such prepayment to be applied to the Revolving Loans until paid in full extent occurring during such Excess Cash Flow Period (or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full occurring after such Excess Cash Flow Period and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon prior to the date of prepayment together with the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts due Bank under Section 3.3.deducted in any prior Excess Cash Flow Period or deducted in the calculation of Excess Cash Flow pursuant to the definition thereof), the following (collectively, the “ECF Deductions”):
Appears in 1 contract
Sources: Credit Agreement (Taboola.com Ltd.)
Mandatory Prepayments. (a) Upon the occurrence of a Change of Control, the Borrowers shall make Full Payment of all Obligations.
(b) When an Obligor or any Subsidiary thereof (other than a Foreign Subsidiary) makes any Asset Disposition (other than a disposition described under clause (a), (b), (c), (d), (e), (f) or (g) of the definition of “Permitted Asset Disposition” hereof) or experiences any Asset Loss Event, the Borrowers shall repay the Loans in an amount equal to 100% of the Net Cash Proceeds thereof, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds, and until the date of payment, such Net Cash Proceeds shall be held in trust for Agent; provided, however, that the Net Cash Proceeds of the foregoing received since the Closing Date shall not be required to be applied to the prepayment of the Loans to the extent such proceeds are to be reinvested in or otherwise used to replace, repair or restore the properties or assets used in such Obligor’s or such Subsidiary’s, as applicable, business and so long as: (i) If no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (ii) Borrower Representative delivers a certificate to Agent within three (3) Business Days after such Asset Disposition or ten (10) Business Days after the occurrence of Asset Loss Event (as applicable), stating that such Net Cash Proceeds shall be used (or committed to be used) to reinvest in new assets useful in the business, or otherwise replace, repair or restore any such properties or assets to be used in such Obligor’s or such Subsidiaries’ business, as the case may be, within a period specified in such certificate not to exceed 270 days (or such longer period as Agent may agree, but not to exceed 360 days without the Required Lenders’ consent) after the receipt of such proceeds (which certificate shall set forth estimates of the proceeds to be so expended and shall set forth in reasonable detail any plans for such replacement, repair or restoration, which shall be acceptable to Agent in its Credit Judgment) and (iii) such Net Cash Proceeds are deposited in a non-interest bearing account subject to the dominion and control of Agent which proceeds shall then be disbursed by Agent to such Obligor or such Subsidiary promptly upon Borrower Representative’s written request therefor setting forth in reasonable detail the use of such proceeds and certifying that such proceeds are being applied in the manner set forth in the certificate delivered to Agent in accordance with clause (ii); provided, further, that (A) if all or any Subsidiary portion of such Net Cash Proceeds not so applied to the prepayment of the Loans are not used (or committed to be used) in accordance with the foregoing proviso within 270 days (or such longer period as Agent may agree, but not to exceed 360 days without the Required Lenders’ consent) of receipt of such Net Cash Proceeds, such amount shall at any time be applied to the Loans as otherwise set forth herein, on the last day of such specified period, (B) if such Obligor or from time such Subsidiary, as the case may be, is not permitted to time make reinvest or agree utilize such Net Cash Proceeds in accordance with this Section 5.3(b) as a result of the existence of a Default, Borrower Representative may request, and upon the written approval of Agent, such Net Cash Proceeds shall be deposited in a non-interest bearing account subject to make a Disposition the dominion and control of Agent until the earlier of (x) the date on which such Default is cured or shall suffer waived in writing in accordance with the terms of this Agreement, in which case such amounts may be reinvested or utilized in accordance with the proviso above and (y) the date on which an Event of Loss with respect to any PropertyDefault shall occur, then Borrower shall promptly notify Bank of in which case such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds shall be applied to the Loans in accordance with Section 5.3(f) on such date and (C) if such Obligor or such Subsidiary, as the case may be, is not permitted to reinvest or utilize such net cash proceeds as a result of a continuing Event of Default, such Net Cash Proceeds shall be applied in accordance with Section 5.3(f). The foregoing shall not be deemed to be received implied consent to any Asset Disposition or other event otherwise prohibited by Borrower the terms and conditions hereof.
(c) Upon the sale or such Subsidiary issuance of any of the Equity Interests (other than Excluded Issuances) of Ultimate Parent or any of its Domestic Subsidiaries (other than a US Foreign Holdco), Borrowers shall repay the Loans in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary an amount equal to 100% of the Net Cash Proceeds of such Disposition sale or Event of Lossissuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account repayments to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
made promptly but in no event more than five (ii5) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon Business Days following receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each , and until the date of payment, such prepayment Net Cash Proceeds shall be applied held in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank trust for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan DocumentsAgent.
(iiid) If after Upon the Closing Date Borrower sale, issuance or incurrence of any Debt of any Obligor or any Subsidiary shall issue any Indebtedness for Borrowed Moneyof its Domestic Subsidiaries, other than Indebtedness for Borrowed Money expressly a US Foreign Holdco (other than Debt permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.under
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Mandatory Prepayments. (ia) If any Indebtedness shall be incurred by the Borrower or after the Closing Date (other than any Subsidiary permitted Indebtedness incurred in accordance with Section 7.2 (except for Credit Agreement Refinancing Indebtedness which shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss be applied in accordance with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss clause (including the amount iii) of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect definition thereof) and)), promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Cash Proceeds thereof shall be applied on the date of all such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.11(d).
(b) If on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, the Applicable Asset Sale Prepayment Percentage of such Net Cash Proceeds shall be applied by the Borrower on the fifth Business Day following such receipt thereof toward the prepayment of the Term Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, at the option of the Company, the Company may reinvest the Net Cash Proceeds in the business of the Company or any of its Subsidiaries within (x) 12 months following the receipt of such Net Cash Proceeds or (y) 18 months following the receipt of such Net Cash Proceeds; provided , in the event that (x) so long as no Default the Company or Event any of Default then exists, this subsection its Subsidiaries shall not require any have entered into a binding commitment within 12 months following the receipt of such prepayment with respect to Net Cash Proceeds received on account to reinvest such Net Cash Proceeds in the business of an Event the Company or any of Loss so long as its Subsidiaries (it being understood that if any portion of such Net Cash Proceeds are no longer intended to be reinvested or are not reinvested within such 18-month period, the Applicable Asset Sale Prepayment Percentage of such Net Cash Proceeds shall be applied by the Borrower on the fifth Business Day after the Company reasonably determines that such Net Cash Proceeds are no longer intended to replace be or restore are not reinvested within such 18-month period toward prepayment of the relevant Property Term Loans as set forth in Section 2.11(d)); provided that if at the time that any such prepayment would be required, the Company or any of its Subsidiaries is required to prepay or offer to repurchase with the Net Cash Proceeds of such Asset Sale or Recovery Event any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured by a Lien on the Collateral that is pari passu (but without regard to the control of remedies) with the Liens securing the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be offered to be so repurchased, “Other Applicable Asset Sale Indebtedness”), then the Company may apply the Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Asset Sale Indebtedness at such time) to the prepayment of such Other Applicable Asset Sale Indebtedness; it being understood that the portion of the Net Cash Proceeds allocated to the Other Applicable Asset Sale Indebtedness shall not exceed the amount of the Net Cash Proceeds required to be allocated to the Other Applicable Asset Sale Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Net Cash Proceeds shall be allocated to the Term Loans in accordance with the relevant terms hereof), and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b) shall be reduced accordingly.
(c) No later than the fifth Business Day after the date on which the financial statements with respect to each fiscal year of the Borrower are required to be delivered pursuant to Section 6.1(a), commencing with the fiscal year ending December 31, 2022, the Borrower shall prepay Term Loans in accordance with Section 2.11(d) in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Applicable ECF Prepayment Percentage of Excess Cash Flow of the Company and its Subsidiaries for the Excess Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment Amount”) minus (B) at the option of the Borrower, to the extent occurring during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period or deducted in the calculation of Excess Cash Flow pursuant to the definition thereof), the following (collectively, the “ECF Deductions”):
(i) the aggregate principal amount of any Term Loans prepaid pursuant to Section 2.10;
(ii) the aggregate principal amount of any Incremental Equivalent Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 7.2 to the extent secured by Liens on the Collateral Documentsthat are pari passu with the Liens on the Collateral securing the Facilities (without regard to the control of remedies), voluntarily prepaid, repurchased, redeemed or otherwise retired;
(iii) the amount of any reduction in the outstanding amount of any Term Loans, Incremental Equivalent Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 7.2 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Facilities (without regard to the control of remedies), resulting from any purchase or assignment made in accordance with Section 10.6(k) (with respect to Term Loans) and any equivalent provisions with respect to any Incremental Equivalent Debt and/or such other Indebtedness;
(iv) all Cash payments in respect of Capital Expenditures and all Cash payments made to acquire IP Rights;
(v) Cash payments by the Company and its Subsidiaries made in respect of long-term liabilities (including for purposes of clarity, the current portion of such long-term liabilities) of the Company and its Subsidiaries other than Indebtedness, except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated EBITDA for such period;
(vi) Cash payments made from internally generated Cash in respect of any Investment (including acquisitions) permitted by Section 7.7 or otherwise consented to by the Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted Payment permitted by Section 7.7 or otherwise consented to by the Required Lenders;
(vii) the aggregate consideration (A) required to be paid in Cash by the Borrower or its Subsidiaries pursuant to binding contracts entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section 7.7 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (vi) above and/or (B) otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or other Investments and/or Restricted Payments described in clause (vi) above (clauses (A) and (B) of this subsection clause (vii), the “Scheduled Consideration”) (other than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such Excess Cash Flow Period; provided that to the extent the aggregate amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent period of four consecutive fiscal quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of the ECF Prepayment Amount at the end of such subsequent period of four consecutive fiscal quarters;
(viii) Cash expenditures in respect of any Hedge Agreement to the extent not require otherwise deducted in the calculation of Consolidated Net Income or Consolidated EBITDA; and
(ix) the aggregate amount of expenditures actually made by the Borrower and/or any Subsidiary in Cash (including any expenditure for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including this Agreement, and including, in each case, any such prepayment with respect transaction consummated prior to, on or after the Closing Date, and Charges incurred in connection therewith, whether or not such transaction was successful), in each case to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower the extent that such expenditures were not exceeding $250,000 expensed; in the aggregate so long as no Default or Event case of Default then existseach of clauses (i)-(ix), (I) excluding any such payments, prepayments and expenditures made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(c) in any prior Fiscal Year, (zII) in the case of any Disposition prepayment of revolving Indebtedness, to the extent accompanied by a permanent reduction in the relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not covered by financed with the proceeds of other Long-Term Indebtedness of the Borrower or its Subsidiaries and (IV) in each case under clause (y3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided that no prepayment under this Section 2.11(c) shall be required unless the principal amount of Term Loans required to be prepaid exceeds $10,000,000 (and, in such case, only such amount in excess of such amount shall be required to be prepaid); provided, further, that if at the time that any such prepayment would be required, the Borrower or any of its Subsidiaries is required to prepay or offer to repurchase with any portion of the ECF Prepayment Amount any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured on a pari passu basis (without regard to the control of remedies) with the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so long as no Default prepaid or Event offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such portion of Default then existsthe ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time) to the prepayment of the Term Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(c) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if Borrower states in its notice any, of such event that Borrower or ECF Prepayment Amount shall be allocated to the relevant Subsidiary intends Term Loans in accordance with the terms hereof and (2) to reinvest, within 90 days the extent the holders of the applicable DispositionOther Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(d) The application of any prepayment pursuant to Section 2.11(a), 2.11(b) or 2.11(c) shall be made ratably to the Term Loans based on the outstanding respective principal amounts thereof. Partial prepayments of the Term Loans pursuant to this Section 2.11 shall be applied to the remaining installments thereof, as directed by the Borrower (and absent any direction in the direct order of maturity). The application of any prepayment of Term Loans pursuant to this Section 2.13 shall be made, first, to ABR Loans and second, to LIBO Rate Loans. Each prepayment of the Loans under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to Section 2.11(b) or (c) to decline all (but not a portion) of its prepayment (such declined amounts, the “Declined Proceeds”), which Declined Proceeds may be retained by the Borrower and used for any purpose permitted (or not prohibited) hereunder, including to increase the Available Amount; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(a) above to the extent that such prepayment is made with the proceeds of any Credit Agreement Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans. If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its ratable percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s ratable percentage of the total amount of such mandatory prepayment of the Term Loans.
(f) Notwithstanding any other provisions of Section 2.11, to the extent any or all of the Net Cash Proceeds thereof from any Asset Sale or Recovery Event received by the Company or a Foreign Subsidiary are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of the Company or such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary (the Company hereby agreeing to promptly take, and to cause the applicable Foreign Subsidiary to promptly take, all actions reasonably required by the applicable local law to permit such repatriation as long as such repatriation does not create a material adverse tax consequence) or if the Company has determined in assets similar good faith that repatriation of any such amount to the assets which were subject Borrower or any applicable Subsidiary would have material adverse tax consequences with respect to such Dispositionamount, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect the portion of such Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.11 but may be retained by the Company or the applicable Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Company believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law or the Company determines in good faith that such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the extent prepayment of the applicable Term Loans as otherwise required pursuant to this Section 2.11; provided that, notwithstanding the foregoing, the Borrower and the applicable Domestic Subsidiary shall have no obligation to repatriate any such Net Cash Proceeds are actually reinvested in such similar assets (or take any further action with such 90 day period. Promptly respect thereto) from and after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided date that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If is twelve months after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vig) If at any time the sum Total Revolving Extensions of Credit exceed the unpaid principal balance Total Revolving Commitments, the Borrower shall, within one Business Day of notice thereof from the Administrative Agent, prepay the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over an amount equal to the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligationsexcess.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
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Mandatory Prepayments. 5.4.1 [Reserved];
5.4.2 Within five (i5) If Borrower Business Days of receipt of Net Proceeds of any non-ordinary course sale or any Subsidiary shall at any time other disposition of assets (including as a result of casualty or from time to time make condemnation and excluding sales or agree to make a Disposition other dispositions of Inventory, surplus, obsolete or shall suffer an Event of Loss with respect to any worn-out Property, then Borrower shall promptly notify Bank Property no longer used or useful in such Obligor’s business) by any Obligor in excess of $2,500,000 in any Fiscal Year (such proposed amount, the “De Minimis Disposition or Event of Loss (including Amount”), with only the amount in excess of the estimated Net Cash Proceeds annual amount being subject to be received by Borrower or such Subsidiary in respect thereof) andprepayment, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount Net Proceeds of all such disposition (for the avoidance of doubt, in excess of such De Minimis Disposition Amount); provided, however, that Net Cash Proceeds; provided Proceeds that are reinvested (xor committed in writing to be reinvested) so long as no Default or Event in replacement assets (including acquisitions of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (yother entities) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 useful in the aggregate so long as no Default or Event of Default then exists, and (z) in the case business of any Disposition not covered by clause Obligor within 365 days (yand if so committed in writing to reinvestment within such 365-day period, reinvested within an additional 180 days) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of (such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Dispositionperiod during which reinvestment is permitted, the Net Cash Proceeds thereof in assets similar to “Reinvestment Period”), shall be excluded; provided, however, the assets which were subject to such Disposition, then Borrower Borrowers shall not be required to make a mandatory prepayment under this subsection in respect of prepay any Obligations during such Net Cash Proceeds to Reinvestment Period. After the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary Reinvestment Period has reinvested such Net Cash Proceeds in such similar assets, andexpired, to the extent not reinvested in accordance with this Section 5.4.2, such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first as follows:
(a) any mandatory prepayments made hereunder related solely to the outstanding Term Loans until paid in full and then Exclusive Revolver Loan/Letter of Credit Collateral (including without limitation any casualty or condemnation related thereto), shall be applied:
(i) FIRST, to the Revolving Loans; provided that proceeds relating to Eligible Inventory then-outstanding principal balance of Revolver Loans pro rata (without a permanent reduction of the Revolver Commitments), unless at such time of repayment, the Borrowers provide a Borrowing Base Certificate and Eligible Receivables then included is in compliance with the Borrowing Base at such time; provided, that to the extent the outstanding Revolver Loans include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss Adjusted Base Rate Loans and remaining balance shall be deposited with Bank (or its agent) and held by it as cash collateral in the Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be disbursed applied to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.SOFR Loans,
(ii) If after SECOND, to Cash Collateralize outstanding Letters of Credit to the Closing Date Borrower extent the undrawn amount of such Letters of Credit exceed the Borrowing Base,
(iii) THIRD, to the then-outstanding principal balance of Term Loans and DDTLs pro rata provided, that to the extent the outstanding Term Loans and DDTLs include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans; and
(iv) LAST, to all remaining Obligations.
(b) any mandatory prepayments made hereunder related solely to Primary Term Loan and DDTL Collateral (including without limitation any casualty or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwisecondemnation related thereto), shall be applied:
(i) FIRST, to the then-outstanding principal balance of Term Loans and DDTLs, pro rata to all remaining payments; provided, that to the extent the outstanding Term Loans and DDTLs include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans,
(ii) SECOND, to Cash Collateralize outstanding Letters of Credit to the extent the undrawn amount of such Letters of Credit exceed the Borrowing Base,
(iii) THIRD, at the option of the Borrowers, to the then-outstanding principal balance of Revolver Loans (without a permanent reduction of the Revolver Commitments), pro rata, provided, that to the extent the outstanding Revolver Loans include Adjusted Base Rate Loans and SOFR Loans, the mandatory prepayments shall first be applied to the Adjusted Base Rate Loans and remaining balance shall be held as cash collateral in Cash Collateral Account until the end of the Interest Periods applicable to such outstanding SOFR Loans and then shall be applied to such SOFR Loans, and
(iv) LAST, to all remaining Obligations. Notwithstanding anything to the contrary contained herein, if any Asset Disposition outside the Ordinary Course of Business includes the disposition of Accounts or Inventory, then Net Proceeds equal to the greater of (x) the net book value of such Accounts and Inventory, or (y) the reduction in the Borrowing Base upon giving effect to such disposition, shall be applied to the Revolver Loans.
5.4.3 During the continuance of any Trigger Period, the amounts on deposit in the Concentration Account shall be applied by the Agent to prepay the then-outstanding principal balance of Revolver Loans pro rata (without a permanent reduction of the Revolver Commitments).
5.4.4 Within five (5) Business Days of the receipt of any Debt by a Borrower (other than equity securities issued in connection with the exercise of employee stock optionsDebt permitted under this Agreement), Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance Debt;
5.4.5 Notwithstanding anything herein to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds contrary, if the aggregate Revolver Exposure exceeds the aggregate Revolver Commitments, Borrowers shall, promptly, following Agent’s notice of such issuanceoccurrence, Borrower shall but in no event later than three (3) Business Days, prepay the Obligations outstanding Revolver Loans (or, if no such Revolver Loans are outstanding, deposit Cash Collateral in a Cash Collateral Account pursuant to Section 7.2.2.) in an aggregate amount equal sufficient to 100% eliminate such excess. For the avoidance of doubt, if an Overadvance exists, the Borrowers shall prepay the Revolver Loans to the extent required by Section 2.1.5.
5.4.6 Notwithstanding anything herein to the contrary, on the Term Loan Maturity Date or DDTL Maturity Date (as applicable), Borrowers shall prepay the Term Loan and all DDTLs (unless sooner repaid hereunder); and
5.4.7 Notwithstanding anything else to the contrary contained herein, the amount of such Net Cash Proceeds. Each such prepayment all mandatory prepayments made pursuant to Section 5.4.4, shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.follows:
(iva) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated DebtFIRST, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first pro rata to the Term Loan until paid in full and then to the Revolving scheduled principal installments,
(b) SECOND, to the DDTLs to the scheduled principal installments of the DDTLs pro rata,
(c) THIRD, at the option of the Borrowers, to Revolver Loans (with without a concurrent permanent reduction of the Revolving CommitmentRevolver Commitments); provided that the proceeds from the divestiture , or to Cash Collateralize outstanding Letters of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Credit, ▇▇▇▇▇▇and
(d) LAST, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3all remaining Obligations.
Appears in 1 contract
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Mandatory Prepayments. (i) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss Stock (including the amount of the estimated Net Cash Proceeds Stock issued pursuant to be received by Borrower a Subject Securities Issuance or such Subsidiary in respect thereof) anda Permitted IPO, promptly upon receipt by Borrower or such Subsidiary of the but excluding Net Cash Proceeds of such Disposition any issuance of Stock in connection with employee and director stock option plans granted in the ordinary course of business or Event pursuant to existing warrants, options or other acquisition rights granted in the ordinary course of Lossbusiness) or Debt shall be issued or incurred by any Company (other than Permitted Debt (other than Debt permitted under CLAUSES (h) and (k) of the definition of Permitted Debt except in each case of clauses (h) and (k), Borrower shall prepay Debt incurred in the Obligations in ordinary course of business)), an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to shall be applied within the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect first Business Day following receipt of such Net Cash Proceeds toward the prepayment of the Term Loans.
(ii) If on any date any Company shall receive Net Cash Proceeds from any Asset Sale then such Net Cash Proceeds shall be applied within the first Business Day following receipt of such Net Cash Proceeds toward the prepayment of the Term Loans, provided that (A) no such prepayment shall be required until the aggregate Net Cash Proceeds of all such Asset Sales subsequent to the Closing Date exceed $25,000,000 and then only to the extent such aggregate Net Cash Proceeds exceed $25,000,000 and (B) to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after Net Cash Proceeds of a casualty or condemnation event, the end of such 90 day period, Borrower relevant Company shall notify Bank whether Borrower or such Subsidiary has reinvested be permitted to reinvest such Net Cash Proceeds in to replace or repair the assets which were the subject of such similar assets, casualty or condemnation event within 270 days after the occurrence thereof (such Company shall deliver a notice to the Administrative Agent prior to the required prepayment date of its intent to so reinvest such Net Cash Proceeds and, to the extent not so reinvested during such period, the portion of the Net Cash Proceeds which have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment reinvested shall be applied first to prepay the outstanding Term Loans until paid in full and then to on the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds last day of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwiseperiod), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after For purposes of this Section, the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to an Accounts Receivable Financing shall be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of treated as Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% incurrence of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to Debt by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documentsa Company.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Credit Agreement (Affiliated Computer Services Inc)
Mandatory Prepayments. (i) (x) If Borrower any Prepayment Event under any of clauses (a) through (d) of the defined term “Prepayment Event” occurs, then, to the extent of any remaining Net Proceeds received by the Loan Parties on account thereof after application of such proceeds to outstanding ABL Obligations in accordance with the ABL Loan Agreement, or (y) if any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Prepayment Event under clause (e) of Loss with respect to any Propertythe defined term “Prepayment Event” occurs, then Borrower shall promptly notify Bank the Borrowers shall, within five (5) Business Days (or immediately in the case of such proposed Disposition or Event any incurrence of Loss (including the amount any Indebtedness that is not Permitted Indebtedness) after receipt of the estimated suchthe Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of each such Disposition or Event of LossPrepayment Event, Borrower shall prepay the Obligations Term Loans in an aggregate amount equal to 100% of such remaining Net Proceeds (or remaining Net Proceeds, as applicable), together with any applicable Prepayment Premium in the amount of all such Net Cash Proceedsspecified in the Agent Fee Letter; provided provided, however, that (x) notwithstanding anything to the contrary in the Agent Fee Letter, no Prepayment Premium shall become due and payable in connection with any Prepayment Event under clause (e) of the defined term “Prepayment Event”, (y) no prepayment shall be required in connection with any Prepayment Event under clause (e) of the defined term “Prepayment Event” if such prepayment would not then be permitted pursuant to Section 8(y) of the ABL Loan Agreement (as in effect on the Fifth Amendment Effective Date) and (z) the Borrowers shall be permitted to replace, repair, restore or rebuild Collateral that is subject to any casualty or other insured damage or any taking under power of eminent domain or by condemnation or similar proceeding of (and payments in lieu thereof), so long as (i) no Default or Event of Default then exists, this subsection shall not require has occurred and is continuing and (ii) any such prepayment with respect to Net Cash Proceeds received on account of an such Prepayment Event of Loss so long as not used to replace, repair, restore or rebuild such Net Cash Proceeds are applied to replace or restore Collateral within 180 days after the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect receipt of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds prepayment of such Disposition or Event of Loss shall be deposited the Term Loans in accordance with Bank (or its agentthis Section 2.6(b)(i) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertySection 2.6(c).
(ii) If after all Commitments under (and as defined in) the Closing ABL Loan Agreement are terminated prior to the Scheduled Maturity Date Borrower or any Subsidiary under (and as defined in) the ABL Loan Agreement, the Borrowers shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank immediately prepay all of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan DocumentsLoans.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
Appears in 1 contract
Sources: Loan and Security Agreement (Rubicon Technologies, Inc.)
Mandatory Prepayments. (ia) If any Indebtedness shall be incurred by the Borrower or any Subsidiary shall at of its Subsidiaries (excluding any time or from time to time make or agree to make a Disposition or shall suffer Indebtedness incurred in accordance with Section 7.2), an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received thereof shall be applied on account the date of such incurrence toward the prepayment of the Term Loans.[Reserved].
(b) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an Event amount equal to 75% of Loss so long as such Net Cash Proceeds are shall be applied to replace within five Business Days following such date toward the prepayment of the Term Loans (or, following the payment in full of the Term Loans, any outstanding Revolving Loans, Swingline Loans or restore Protective Advances); provided, that, notwithstanding the relevant Property in accordance with the relevant Collateral Documentsforegoing, (yi) this subsection shall not require any such prepayment with respect to the aggregate Net Cash Proceeds received on account of Dispositions during Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, in any fiscal year of Borrower not exceeding $250,000 in the aggregate so long Borrower, an amount equal to 5% of Consolidated Total Assets as no Default or Event of Default then existsthe last day of the Borrower’s immediately preceding fiscal year, and (zii) in on each Reinvestment Prepayment Date, an amount equal to the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or Reinvestment Prepayment Amount with respect to the relevant Subsidiary intends to reinvest, within 90 days Reinvestment Event shall be applied toward the prepayment of the applicable DispositionTerm Loans (or, following the payment in full of the Term Loans, any outstanding Revolving Loans, Swingline Loans or Protective Advances); provided, further, that, notwithstanding the foregoing, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under prepay the Term Loans in accordance with this subsection in respect of such paragraph (b) except to the extent that the Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower from all Asset Sales or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds Recovery Events which have not been so reinvested, Borrower shall promptly prepay the Obligations applied equals or exceeds $20,000,000 in the amount aggregate; provided further that any prepayment of such Net Cash Proceeds Revolving Loans, Swingline Loans or Protective Advances pursuant to this Section 2.11(b) shall not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid result in full and then to a reduction in the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such PropertyCommitments.
(iic) If after If, for any fiscal year of the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection commencing with the exercise fiscal year ending December 31, 2014, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of employee stock options, Borrower shall promptly notify Bank such Excess Cash Flow toward the prepayment of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash ProceedsTerm Loans. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the rights and remedies earlier of Bank for any breach of Section 7.5 (Maintenance of Subsidiariesi) or Section 8.1(i) (Change of Control) hereof or any other terms the date on which the financial statements of the Loan DocumentsBorrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.[Reserved].
(iiid) If after [Reserved].
(i) In the Closing Date event and on the occasion that the Total Revolving Extensions of Credit exceed the lesser of (x) the Total Revolving Commitments minus Reserves and (y) the Borrowing Base, the Borrower shall, without notice or demand, within one Business Day prepay the Revolving Loans, Swingline 48 509265-1832-141352041-Active.21575686.1328267668.14
(f) The application of any Subsidiary prepayment of Loans pursuant to this Section 2.11 shall issue any Indebtedness for Borrowed Moneybe made, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1first, Borrower shall promptly notify Bank to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the estimated Loans under Section 2.11 (except in the case of Revolving Loans that are ABR Loans, Swingline Loans and Protective Advances) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid and shall in every case be without premium, charge or penalty on account of such prepayment except such as would otherwise be due on account of a prepayment prior to the last day of an Interest Period.
(g) At all times during a Cash Dominion Period, on each Business Day, the Administrative Agent shall apply all funds credited to the Collection Account on such Business Day or the immediately preceding Business Day (at the discretion of the Administrative Agent, whether or not immediately available) first to prepay any Protective Advances then outstanding and second to prepay the Revolving Loans and Swingline Loans and to cash collateralize Letters of Credit in a manner satisfactory to the Administrative Agent and the Issuing Lender. Notwithstanding the foregoing, to the extent any funds credited to the Collection Account constitute Net Cash Proceeds of such issuance to be received by from any Asset Sale or for Recovery Event, the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount application of such Net Cash Proceeds. Each such prepayment Proceeds shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant subject to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced2.11(b).
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
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Mandatory Prepayments. (i) If Borrower Borrowers or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then such Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by such Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by such Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, such Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of such Borrower not exceeding $250,000 25,000.00 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if such Borrower states in its notice of such event that such Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then such Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, such Borrower shall notify Bank whether such Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, such Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Revolving LoansCredit; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s Borrowers’ direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date any Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, such Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by any Borrower or such Subsidiary of Net Cash Proceeds of such issuance, such Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in such amounts full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Credit. Each Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 7.(5) (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date any Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.17.1(a)-(i), such Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by any Borrower or such Subsidiary of Net Cash Proceeds of such issuance, such Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in such amounts full and then to such Obligations as agreed to by Borrower and Bankthe Revolving Credit. Each Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower Borrowers shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(viv) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computedRevolving Credit Commitment, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligationspaid.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viiivi) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan Loans until paid payment in full and then to the Revolving Loans (thereof with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be any balance applied to the Revolving Loans outstandingCredit Loans. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
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Mandatory Prepayments. (i) If Subject to the proviso below, upon the occurrence of any Casualty Event, the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount mandatory prepayment of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) and, promptly upon receipt by Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to the sum of (x) one hundred percent (100% %) of the Net Cash Proceeds received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (y) any accrued but unpaid interest on such principal amount of all such Net Cash Proceedsthe Term Loan being prepaid; provided that (x) so long as no Default or Event of Default then existshas occurred and is continuing at the time the Borrower or any Obligor shall have received such Net Cash Proceeds, this subsection shall not require if, within five (5) Business Days following the occurrence of any such prepayment with respect Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent a notice (each, a “Casualty Event Reinvestment Notice”) to the effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds received on account from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of an Event purchase or construction of Loss so long as other assets useful in the business of the Borrower or its Subsidiaries, then such Net Cash Proceeds are of such Casualty Event may be applied to replace or restore the relevant Property for such purpose in accordance with the relevant Collateral Documentslieu of such mandatory prepayment, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 provided further that, in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90 day period. Promptly after the end of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvestedapplied within one hundred eighty (180) days following the occurrence of such Casualty Event, the Borrower shall promptly prepay make a mandatory prepayment of the Obligations Term Loan in an aggregate amount equal to the amount sum of (A) one hundred percent (100%) of the unused balance of such Net Cash Proceeds not so reinvested. The received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (B) any accrued but unpaid interest on such principal amount of each the Term Loan being prepaid, provided, further, that to the extent that the property subject to the Casualty Event is Collateral, then any such prepayment acquired, replaced, repaired, purchased or constructed property shall be applied first to Collateral in which the outstanding Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requestsAdministrative Agent, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs benefit of replacingthe Lenders, rebuilding or restoring such Propertyhas been granted a security interest under the Security Documents.
(ii) If after Upon receipt of the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise)Tucson Real Estate Sale Proceeds in accordance with Section 8.22, other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank make a mandatory prepayment of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100% %) of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of received by the Borrower from Icagen-T in connection with such issuance sale, to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced3.03(d) below.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, accrued interest thereon to the date of prepayment together with any amounts due Bank under Section 3.3.
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Sources: Forbearance Agreement and First Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (ia) If Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event Not later than the fifth Business Day following the receipt of Loss with respect to any Property, then Borrower shall promptly notify Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by Borrower or such Subsidiary in respect thereof) andof any Asset Sale or any Recovery Event (to the extent that such Net Cash Proceeds exceed $1,000,000 in the aggregate), promptly upon receipt by Borrower or such Subsidiary the Borrowers shall apply 100% of the Net Cash Proceeds (provided that such percentage shall be reduced to 75% if the Total Net Leverage Ratio after giving Pro Forma Effect to such Asset Sale is less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, and to 50% if the Total Net Leverage Ratio after giving Pro Forma Effect to such Asset Sale is less than or equal to 2.00 to 1.00) received with respect thereto to prepay outstanding Term Loans in accordance with Section 2.13(d); provided, that if at the time that any such prepayment would be required, the Borrowers or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Disposition Asset Sale or Recovery Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the applicable Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of Lossthe aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time so long as 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, Borrower and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase, redemption or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.13(a) shall be reduced accordingly.
(b) No later than the fifth Business Day after the date on which financial statements with respect to a fiscal year of Holdings are delivered pursuant to Section 5.04(a), beginning with the fiscal year ending on or about December 31, 2019, the Borrowers shall prepay the Obligations outstanding Term Loans in accordance with Section 2.13(d) in an aggregate principal amount equal to the excess (if any) of (x) 50% of Excess Cash Flow for the fiscal year then ended (provided that such percentage shall be reduced to 25% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00, and to 0% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.00 to 1.00) minus (y) Voluntary Prepayments made during such fiscal year, on a dollar-for-dollar basis, other than to the extent any such Voluntary Prepayment is funded with the proceeds of new long-term Indebtedness.
(c) In the event that any Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed of any Borrower or any Restricted Subsidiary (other than any cash proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrowers shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by the Borrowers or such Restricted Subsidiary, apply an amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds prepay outstanding Term Loans in accordance with Section 2.13(d).
(d) So long as any Term Loans are actually reinvested in such similar assets with such 90 day period. Promptly after the end outstanding, mandatory prepayments of such 90 day period, Borrower shall notify Bank whether Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment outstanding Term Loans under this Agreement shall be applied first pro rata to the outstanding each Class of Term Loans until paid in full and then to the Revolving Loans; provided that proceeds relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Loans. If Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in the Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.5 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money expressly permitted by Section 7.1, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(iv) If after the Closing Date Borrower or any Subsidiary shall issue any Subordinated Debt, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by Borrower or such Subsidiary of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied in such amounts and to such Obligations as agreed to by Borrower and Bank. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any breach of Section 7.1 or any other terms of the Loan Documents.
(v) Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(vii) If at any time the Dollar Equivalent of the sum of the aggregate principal amount of the total Revolving Loans in Euros exceeds the Euro Sublimit, Borrower shall immediately and without notice or demand pay over the amount of the excess to Bank as and for a mandatory prepayment on such Obligations, with each such prepayment to be applied to the Revolving Loans until paid in full or the Euro Sublimit is no longer exceeded.
(viii) Unless Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the Term Loan until paid in full and then to the Revolving Loans (with a concurrent permanent reduction of the Revolving Commitment); provided that the proceeds from the divestiture of the real property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ shall be permitted to first be applied to the Revolving Loans outstanding. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid andexcept, in the case of amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.13(b), such mandatory prepayments shall be allocated to each of the U.S. Term Loans and the Cayman Term Loans based on the amount of Excess Cash Flow generated by each of the U.S. Borrower and the Domestic Subsidiaries, on the one hand, and the Cayman Borrower and the Foreign Subsidiaries, on the other hand, as determined in good faith by the U.S. Borrower) and within each Class to any Term Loansinstallments thereof (1) in direct order of maturity of the remaining installments for the next eight amortization payments following the relevant prepayment event, accrued interest thereon and (2) thereafter, ratably to the date remaining installments.
(e) Each Borrower shall deliver to the Administrative Agent, to the extent practicable, at least three Business Days prior written notice of a prepayment together with any amounts due Bank required under Section 3.3.this
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