Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d). (1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d). (2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction. (c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders. (d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (INC Research Holdings, Inc.), Credit Agreement (INC Research Holdings, Inc.)
Mandatory Prepayments. (a) If any Indebtedness Subject to the terms of the Intercreditor Agreement, the Borrower shall be incurred or issued by any Group Member after prepay the Closing Date (other than Excluded Indebtedness), Loans in an amount equal to 100% of the Net Cash Proceeds thereof received by an Obligor on account of a Prepayment Event; provided, however, that, so long as no Cash Dominion Event or Event of Default shall have occurred and be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive continuing, Net Cash Proceeds on account of a Prepayment Event described in clause (a) or (b) of the definition of Prepayment Event shall not be required to be so applied to the extent an Obligor uses (or commits to use pursuant to a binding agreement) such Net Cash Proceeds to acquire or repair assets consisting of Term Loan Priority Collateral (to the extent such Net Cash Proceeds arose from any Asset Sale or Recovery Event then, unless the a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% Disposition of Term Loan Priority Collateral) within 180 days of the receipt of such Net Cash Proceeds (and if so committed but not reinvested within such 180 day period, such Net Cash Proceeds are so reinvested within 270 days of the receipt of such Net Cash Proceeds), it being expressly agreed that (A) any such Net Cash Proceeds not reinvested or committed to be reinvested within the initial 180 day period shall be paid to the Lenders and applied on such date toward the prepayment of to repay the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding within five Business Days following the foregoing, on each Reinvestment Prepayment Date, an amount equal expiration of such 180 day period and (B) any such Net Cash Proceeds committed to be reinvested during the initial 270 day period and not so reinvested within such 270 day period shall be paid to the Reinvestment Prepayment Amount with respect Lenders and applied to the relevant Reinvestment Event shall be applied toward the prepayment of repay the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding within five Business Days following the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount expiration of such reduction270 day period.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (Pacific Sunwear of California Inc), Credit Agreement (Pacific Sunwear of California Inc)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within five Business Days following such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, in any fiscal year of the Borrower, an amount equal to 5% of Consolidated Total Assets as of the last day of the Borrower’s immediately preceding fiscal year, and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding Loans; provided, further, that, notwithstanding the foregoing, the Borrower shall not be required to prepay the Term Loans in accordance with this paragraph (b) except to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any from all Asset Sale Sales which have not been so applied equals or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to exceeds $20,000,000 in the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionaggregate.
(c) The If, for any fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2007, there shall be Excess Cash Flow and the Consolidated Leverage Ratio as of the last day of such fiscal year is greater than or equal to 2.75 to 1.00, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts If on any Calculation Date, the Total Revolving Extensions of Credit exceed 105% of the Total Revolving Commitments or the Alternative Currency LC Exposure exceeds 105% of the Alternative Currency LC Commitment, the Borrower shall, without notice or demand, within three Business Days after such Calculation Date, prepay the Revolving Loans (or, if no Revolving Loans remain outstanding, cash collateralize Letters of Credit in a manner satisfactory to be applied the Administrative Agent) in connection with prepayments made an aggregate amount such that, after giving effect thereto, the Total Revolving Extensions of Credit do not exceed the Total Revolving Commitments and the Alternative Currency LC Exposure does not exceed the Alternative Currency LC Commitment.
(e) The application of any prepayment of Loans pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid 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.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (Rent a Center Inc De), Credit Agreement (Rent a Center Inc De)
Mandatory Prepayments. (a) If any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2) shall be incurred by Holdings, the Borrower or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)Restricted Subsidiary, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on no later than one Business Day after the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If on any date Holdings, the Borrower or any Group Member Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on not later than five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that, notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (y) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be applied prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date; provided that unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sales or Recovery Events, after giving effect to the reinvestment rights set forth herein, exceeds $25,000,000 in any fiscal year of the Borrower, no such prepayment shall be required pursuant to this Section 2.12(b).
(c) If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2017, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the sum of (A) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year (other than to the extent made with the proceeds of the incurrence of Indebtedness) and solely to the extent accompanied by permanent optional reductions of the Revolving Commitments and (B) all optional prepayments of Term Loans during such fiscal year (including optional prepayments pursuant to Section 2.11(b)), in each case other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first2.18(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 Base Rate the then outstanding Term Loans andbeing prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.12(e), secondthen, with respect to Eurodollar Loanssuch mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment Each Lender may elect (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m.sole discretion) to decline all (but not less than all) of its pro rata share (such amount, New York City timethe “Declined Proceeds”) of any mandatory prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 a.m., on the Closingupon funding date that is three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a notice of election declining receipt of its pro rata share of such mandatory prepayment to the Administrative Agent within the time frame specified above, any such failure will be deemed to constitute an acceptance of such Lender’s pro rata share of the total amount of such mandatory prepayment of Term Loans. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any Declined Proceeds by any Lender shall be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with the terms of this Agreement.
(f) On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 7.2(aa), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay Term Loans in an aggregate principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness.
(g) Beginning on the Amendment No.1Closing Date, the Borrower shall apply 100% of all cash proceeds net of all fees, commissions, costs and other expenses, from any issuance or incurrence of Refinancing Term Loans and Replacement Revolving Facility Commitments (other than solely by means of extending or renewing then existing Refinancing Term Loans and Replacement Revolving Facility Commitments without resulting in any net proceeds), no later than three (3) Business Days after the date on which such Refinancing Term Loans and/or Replacement Revolving Facility Commitments are incurred, to prepay Term Loans and/or Revolving Commitments in accordance with Section 2.29.
(h) In the event and on such occasion that the total outstanding Revolving Extensions of Credit exceed the total Revolving Commitments, the Borrower shall prepay Revolving Loans and/or Swingline Loans (or, if no such Loans are outstanding, deposit in a cash collateral account opened by the Administrative Agent an amount equal to the necessary aggregate then undrawn and unexpired amount of such Letters of Credit) made to the Borrower, in an aggregate amount equal to the amount by which the Revolving Extensions of Credit exceed the total Revolving Commitments. Each prepayment shall be applied to the Revolving Loans included in the repaid Loans such that each Revolving Lender receives its ratable share of such prepayment (based upon the respective Aggregate Exposures of the Revolving Lenders at the time of such prepayment).
Appears in 2 contracts
Sources: Credit Agreement (Engility Holdings, Inc.), Credit Agreement (Engility Holdings, Inc.)
Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Company or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.02), then not later than the next Business Day following such incurrence, the Loans shall be prepaid by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)incurrence.
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, not later than the fifth Business Day following the receipt by the Company or such Subsidiary of such Net Cash Proceeds, the Loans shall be prepaid by an amount equal to 100% the amount of such Net Cash Proceeds; provided that (i) any such prepayment shall only be required with the aggregate amount of Net Cash Proceeds shall be applied on such date toward the prepayment from any Asset Sale or Recovery Event received in any fiscal year of the Term Loans as set forth Company in Section 4.2(d); provided that, excess of $1,000,000 and (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date, 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 shall be applied toward the prepayment Event. The provisions of the Term Loans as set forth in this Section 4.2(d).
(2) Notwithstanding the foregoing, do not constitute a consent to the extent that (and for so long as) any of or all of the Net Cash Proceeds consummation of any Asset Sale or any Recovery Event Disposition not permitted by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction7.05.
(c) The Borrower shallUnless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Company commencing with the fiscal year ending January 31, 2015, there shall be Excess Cash Flow, then, on each the relevant Excess Cash Flow Application Date, apply the Loans shall be prepaid by an amount equal to (x) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option minus (y) voluntary payments of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in under Section 4.2(d)2.09 during such fiscal year but only to the extent that such prepayments do not (i) occur pursuant to a refinancing of all or any portion of such Term Loans or (ii) utilize the Available Amount. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days five Business Days after the earlier of the date on which the financial statements of the Company referred to in Section 7.1(a) 6.01(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, (i) are required to be delivered to the LendersLenders and (ii) are actually delivered.
(d) Amounts In the event of any termination of all the Revolving Credit Commitments, each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and each Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitment, then the Borrowers shall, on the date of such reduction or at such other time, repay or prepay Revolving Credit Loans 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.
(e) Notwithstanding any other provisions of this Section 2.10, (A) to the extent that any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary or Excess Cash Flow estimated in good faith by the Company to be attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary duties of directors and managers of Foreign Subsidiaries) from being repatriated to the United States or passed on to or used for the benefit of the Company, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in connection this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as applicable local law delays or will not permit repatriation thereof to the United States (the Company hereby agreeing to cause the applicable Foreign Subsidiary to use commercially reasonable efforts in compliance with applicable law to effect such repatriation), and once such repatriation to the United States of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under applicable local law, such repatriation to the United States will be promptly effected and such repatriated 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 Loans to the extent otherwise required under this Section 2.10 and (B) to the extent that the Company has determined in good faith that repatriation to the United States of any of or all the Net Cash Proceeds of any Disposition by a Foreign Subsidiary or Excess Cash Flow estimated in good faith by the Company to be attributable to Foreign Subsidiaries or passing on to or use thereof for the benefit of the Company would cause significant adverse tax consequences to the Company or any of its Subsidiaries, such 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 180 days from the date on which any such Net Cash Proceeds so retained would otherwise have been required to be applied to prepayments to the extent otherwise required under Section 2.10(b) or any such Excess Cash Flow would have been required to be applied to prepayments pursuant to Section 2.10(c), the Company applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by or was attributable to the Company 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 to the United States (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary). For the avoidance of doubt, but without limiting the Company’s obligations under this Section 2.10, in no circumstance shall this Section 2.10 require any Foreign Subsidiary to make any dividend of or otherwise repatriate for the benefit of the Company any portion of any Net Cash Proceeds received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(f) All prepayments made pursuant to this Section 4.2 2.10 shall be applied subject to the prepayment of the Term Loans in accordance with Section 4.8 2.19, but shall otherwise be without premium or penalty, and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest on the principal amount to be repaid to but excluding the date of such prepayment on the amount prepaidpayment.
(eg) Each prepayment of Loans pursuant to this Section 2.10 shall be applied first, pro rata to the installments of Term Loans which are scheduled to mature in the 24-month period immediately following such prepayment, second, to remaining installments of Term Loans pro rata according to the outstanding principal amounts thereof, third, if no Term Loans are outstanding, to prepay outstanding Revolving Credit Loans to the full extent thereof, and fourth, if no Term Loans or Revolving Credit Loans are outstanding, to cash collateralize any outstanding Letters of Credit (up to an aggregate amount equal to the aggregate undrawn face amount of all such Letters of Credit) (it being understood that any such repayment or cash collateralization shall not permanently reduce Revolving Credit Commitments).
(h) The TotalAdditional Term B Commitment Company shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.10, (1) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment and (2) at least one Business Day prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the Term Commitments principal amount of each LenderLoan (or portion thereof) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1to be prepaid.
Appears in 2 contracts
Sources: Refinancing Amendment and Joinder Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc)
Mandatory Prepayments. (ai) If Borrower or any Indebtedness 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 incurred received by Borrower or issued such Subsidiary in respect thereof) and, promptly upon receipt by any Group Member after Borrower or such Subsidiary of the Closing Date (other than Excluded Indebtedness)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 on first to the date 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 incurrence Disposition or issuance toward Event of Loss shall be deposited with Bank (or its agent) and held by it in the prepayment Collateral Account to be disbursed to or at Borrower’s direction for application to or reimbursement for the costs of the Term Loans as set forth in Section 4.2(d)replacing, rebuilding or restoring such Property.
(1ii) If on after the Closing Date Borrower or any date any Group Member Subsidiary shall receive 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 Asset Sale of such issuance to be received by or Recovery Event then, unless a Reinvestment Notice shall be delivered 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 such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Net Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Proceeds. Each such prepayment shall be made on a date 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 (an “Excess Cash Flow Application Date”Maintenance of Subsidiaries) no later than ten or Section 8.1(i) (10Change of Control) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year hereof or any other terms of the Borrower with respect to which such prepayment is made are required to be delivered to the LendersLoan Documents.
(diii) Amounts 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 connection with prepayments made 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 this Section 4.2 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 prepayment 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 Term sum of the aggregate principal amount of the total Revolving Loans in accordance 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 4.8 2.8(b) shall be applied first to the Term Loan until paid in full and firstthen 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 Base Rate first be applied to the Revolving Loans and, second, to Eurodollar Loansoutstanding. Each prepayment of the Term Loans under this Section 4.2 2.8(b) shall be accompanied 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 such prepayment on the amount prepaidtogether with any amounts due Bank under Section 3.3.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (Twin Disc Inc), Credit Agreement (Twin Disc Inc)
Mandatory Prepayments. (ai) If No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrowers are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 31, 2016 (but not including any Excess Cash Flow attributable to any period ending prior to the Closing Date), the Borrowers shall prepay the outstanding Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b) in an aggregate principal amount equal to (A) 50% of Excess Cash Flow for Holdings and its Subsidiaries on a consolidated basis for the Fiscal Year then ended, minus (B) at the option of the Borrowers, the aggregate principal amount of any Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.10(a) prior to such date (excluding any such optional prepayments made during such Fiscal Year that were deducted from the amount required to be prepaid pursuant to this Section 2.10(b)(i) in the prior Fiscal Year) (in the case of any such revolving loans prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrowers or their Subsidiaries); provided that with respect to any Fiscal Year, such percentage of Excess Cash Flow shall be incurred reduced to 25% of Excess Cash Flow if the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or issued equal to 3.50 to 1.00.
(ii) No later than the fifth Business Day following the receipt by Holdings or any Group Member after Subsidiary of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $2,500,000 in the Closing Date (other than Excluded Indebtedness)aggregate in any Fiscal Year, the Borrowers shall apply an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds to prepay the outstanding principal amount of Term Loans and Additional Term 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 Representative notifies the Administrative Agent of the Borrowers’ intention to reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business of the Combined Group, then so long as no Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of such incurrence Net Proceeds or issuance toward Net Insurance/Condemnation Proceeds to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 12 months following receipt thereof, or if Holdings, any Borrower or any of Holdings’ Subsidiaries has committed to so reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds during such 12-month period and such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay Term Loans in an amount equal to the Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Borrowers are required to 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 Net Proceeds (such Indebtedness (or Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, the “Other Applicable Indebtedness”), then the Borrowers may apply such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Term Loans as set forth and Additional 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, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with OID) at such time; provided that the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 4.2(d)2.10(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness 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 and Additional Term Loans in accordance with the terms hereof.
(1iii) If on In the event that Holdings or any date any Group Member of its Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness of Holdings or any Asset Sale of its Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except to the extent constituting Refinancing Indebtedness incurred to refinance all or Recovery Event thena portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c)), unless a Reinvestment Notice shall be delivered the Borrowers shall, substantially simultaneously with (and in respect thereofany event not later than the next succeeding Business Day) the receipt of such Net Proceeds by Holdings or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b).
(iv) Notwithstanding any provision under this Section 2.10(b) to the contrary, (A) any amounts that would otherwise be required to be paid by the Borrowers pursuant to Section 2.10(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by a Foreign Subsidiary, such Net Insurance/Condemnation Proceeds are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the applicable Borrower agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds, Net Insurance/Condemnation 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 (including any Tax Distributions) payable or reserved against as a result thereof) to the repayment of the Term Loans and Additional Term Loans pursuant to this Section 2.10(b) to the extent provided herein; and (B) if the Borrower Representative determines in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans and Additional Term Loans pursuant to Section 2.10(b)(i) or (ii) above would result in adverse Tax consequences, 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 Borrower Representative, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.10(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.10(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrowers rather than such Foreign Subsidiary, less the amount of additional Taxes (including any Tax Distributions) that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary or (y) such Net Proceeds or Net Insurance Condemnation Proceeds shall be applied on such date toward to the prepayment repayment of Indebtedness of the Term Loans as set forth in Section 4.2(d)applicable Foreign Subsidiary; provided thatprovided, notwithstanding further, that to the foregoingextent that the repatriation of any Net Proceeds, on each Reinvestment Prepayment DateNet Insurance/Condemnation Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have an adverse Tax consequence, an amount equal to the Reinvestment Prepayment Amount with respect Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clauses (x) and (y), shall be promptly applied to the relevant Reinvestment Event shall be applied toward the prepayment repayment of the Term Loans and Additional Term Loans pursuant to Section 2.10(b) as set forth in Section 4.2(dotherwise required above (without regard to this clause (iv)).
(2v) Notwithstanding Each Lender may elect, by notice to the foregoingAdministrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans and Additional Term Loans required to be made by the Borrowers pursuant to this Section 2.10(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrowers and shall be added (without duplication) to the calculation of the Available Amount in accordance with the definition thereof; provided, further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.10(b)(iii) above to the extent that (and for so long as) any of constituting Refinancing Indebtedness incurred to refinance all or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified by the Administrative Agent, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred any amendment to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied this Agreement in connection with prepayments made any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this Section 4.2 2.10(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Term Loans, all accepted prepayments under Section 2.10(b)(i), (ii) or (iii) shall be applied first against the next 6 scheduled installments of principal due in respect of the Term Loans in accordance with Section 4.8 direct order of maturity until such installments are paid in full and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment then against remaining scheduled installments of principal due in respect of the Term Loans on a pro rata basis, and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage. The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to ABR Loans to the full extent thereof before application to the LIBO Rate Loans.
(vii) In the event and on each Business Day on which the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitments, the Borrowers shall prepay the Revolving Loans or Swingline Loans and/or reduce LC Exposure, in an aggregate amount equal to such excess by taking any of the following actions as it shall determine at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to such excess LC Exposure, deposit of Cash in the LC Collateral Account or “backstopping” or replacement of such Letters of Credit, in each case, in an amount equal to 103% of such excess LC Exposure (but in any event, such payments of Revolving Loans or Swingline Loans and such deposits of Cash or “backstopping” or replacements of Letters of Credit shall in the aggregate be equal to such excess) and pursuant to arrangements (and with “backstop” letter of credit issuers) reasonably acceptable to the applicable Issuing Banks.
(viii) The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 4.2 2.10(b)(i), (ii) or (iii), a certificate signed by a Responsible Officer of the Borrower Representative setting forth in reasonable detail the calculation of the amount of such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest to the date as required by Section 2.12. All prepayments of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each LenderBorrowings under this Section 2.10(b) shall terminate be subject to Section 2.11(e) (in its entirety at 5:00 p.m.the case of prepayments under clause (iii) above as part of a Repricing Transaction) and Section 2.15, New York City time, on the Closingupon funding on the Amendment No.1but shall otherwise be without premium or penalty.
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Mandatory Prepayments. (a) If the Borrower or any of its Subsidiaries shall issue debt securities or instruments pursuant to a public offering or private placement (excluding any Indebtedness incurred in accordance with Section 7.2), then on the next Business Day following such issuance, the Term Loans shall be incurred or issued prepaid by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence issuance (or issuance toward the prepayment of such lesser amount to repay the Term Loans as set forth in full). The provisions of this Section 4.2(d)do not constitute a consent to the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries not permitted under Section 7.2.
(1b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, then on the next Business Day following the receipt of such Net Cash Proceeds, the Term Loans shall be prepaid by an amount equal to 100% the amount of such Net Cash Proceeds shall be applied on (or such date toward the prepayment of lesser amount to repay the Term Loans as set forth in Section 4.2(dfull); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, Date the Term Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event Event; provided further, that one time during the term of this Agreement the Borrower shall be applied toward entitled, upon notice to the Administrative Agent, to exclude up to $15,000,000 from the prepayment and reinvestment requirements of the Term Loans as set forth in this clause (b). The provisions of this Section 4.2(d).
(2) Notwithstanding the foregoing, do not constitute a consent to the extent that (and for so long as) any of or all of the Net Cash Proceeds consummation of any Asset Sale or any Recovery Event Disposition not permitted by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction7.5.
(c) The If, for any fiscal year of the Borrower shallcommencing with the fiscal year ending December 31, 2012, there shall be Excess Cash Flow, then, on each the relevant Excess Cash Flow Application Date, apply the Term Loans shall be prepaid by an amount equal to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on (or prior such Excess Cash Flow Application Date, toward the prepayment of lesser amount to repay the Term Loans as set forth in Section 4.2(dfull). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1 (a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied Notwithstanding anything to the prepayment contrary herein, mandatory prepayments of the Term Loans shall not be required to the extent such prepayment would result in accordance with Section 4.8 and first, a taxable gain for US Federal income tax purposes at such time to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment any member of the Term Loans under this Section 4.2 shall be accompanied Borrower as a direct result thereof, with any limitations in the prepayment being supported by accrued interest reasonably detailed calculations presented to the Administrative Agent within five Business Days of the date of on which such prepayment on the amount prepaidwould otherwise be due.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (National CineMedia, LLC)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Total Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on Closing Date.
(f) For the Amendment No.1avoidance of doubt, if any prepayment under Section 4.2(a) is a Repricing Transaction, the repayment shall be subject to Section 4.1(d).
Appears in 2 contracts
Sources: Credit Agreement (INC Research Holdings, Inc.), Credit Agreement (INC Research Holdings, Inc.)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after Upon the Closing Date (other than Excluded Indebtedness)consummation of the Classmates IPO, an amount equal to 100to: (i) the greater of (x) 50% of the Net Cash Proceeds thereof net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of such incurrence or issuance the Classmates IPO toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.6(c).
(1b) If on If, for any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thenfiscal quarter of Borrower beginning with the fiscal quarter ending March 31, unless a Reinvestment Notice 2009, there shall be delivered in respect thereof, an amount equal to 100% of such Net Excess Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the BorrowerFlow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) 45 days after the date on which the financial statements referred to in Section 7.1(a) each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the Borrower with respect to which such prepayment is made are amount of Loans required to be delivered repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the Lendersamount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(dc) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.6 shall be applied applied, to the prepayment of the Term Loans in accordance with Section 4.8 2.12(b) (unless otherwise agreed to in writing by and firstamong Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to Base Rate the prepayment, on a pro rata basis, of the Loans and, second, held by Lenders that have elected to Eurodollar Loansaccept such Declined Amounts. Each prepayment of the Term Loans under this Section 4.2 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (United Online Inc), Credit Agreement (United Online Inc)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date the Borrower or any Group Member its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thenPrepayment Event, unless the Borrower shall promptly, and in any event within ten Business Days, make a Reinvestment Notice shall be delivered prepayment of the Loans in respect thereof, an aggregate amount equal to 100% of such Net Cash Proceeds Proceeds; provided that the Borrower shall not be applied on such date toward required to prepay the prepayment Loans as a result of a Prepayment Event under clause (a) or (b) of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
definition thereof if (2) Notwithstanding the foregoing, and to the extent that (and for so long as) any of or all in excess of the Net Cash Proceeds of Prepayment Threshold Amount), for any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made 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 required to be 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 LendersAdministrative 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 may be applied for the purposes set forth in such Reinvestment Notice and, if not so applied by the Reinvestment Prepayment Date with respect to the relevant Prepayment Event, shall be applied on such date to prepay the Loans in accordance with clause (c) below, until such outstanding Loans are repaid in full.
(db) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 clause (a) shall be applied (i) first to the prepayment Tranche B Loans and (ii) second, once all amounts due under the Tranche B Loans have been paid in 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 Term Loans in accordance with Section 4.8 and firstTranche A Commitments, to Base Rate Loans the Borrower shall repay each such excess amount promptly (and, secondin any event, within ten Business Days) after the event giving rise to Eurodollar Loans. such reduction of the Tranche A Commitments.
(c) Each prepayment of the Term Loans under this Section 4.2 2.8 shall be accompanied by made together with accrued interest to the date of such prepayment on the amount prepaidso prepaid and any other amounts due pursuant to Section 3.4. Any amount prepaid under this Section 2.8 may not be reborrowed.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (Kansas City Southern), Credit Agreement (Kansas City Southern De Mexico, S.A. De C.V.)
Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred by the Parent Borrower or issued any of its Subsidiaries (excluding any Indebtedness permitted by any Group Member after the Closing Date (other than Excluded IndebtednessSection 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.13(e).
(1b) If on On the date the Parent Borrower or any date any Group Member 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 amount equal to 100% of such the Net Cash Proceeds thereof shall be applied on not later than five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.13(e); provided that, that notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, an amount equal to the unexpended portion of the Reinvestment Prepayment Amount (other than the Committed Reinvestment Amount) with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.13(e) and (y) on the date (the “Trigger Date”) that is one year after any such Reinvestment Prepayment Date, an amount equal to the Commitment Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by the Trigger Date shall be applied toward the prepayment of the Term Loans as set forth in Section 2.13(e).
(2c) Notwithstanding If, for any fiscal year of the foregoingParent Borrower commencing with the fiscal year ending December 31, 2008, there shall be Excess Cash Flow, the Parent Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow minus (ii) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year to the extent that (accompanied by permanent optional reductions of the Revolving Commitments and for so long as) all optional prepayments of Term Loans during such fiscal year, in each case other than to the extent any of or all of such prepayment is funded with the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Sale, Recovery Event, a “Specified Asset Sale”) are prohibited new long-term Indebtedness or delayed by applicable local Requirements issuance of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application DateCapital Stock, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.13(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five business days after the date on which the financial statements of the Parent Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made being made, are required to be delivered to the Lenders.
(d) Amounts If, due to exchange rate fluctuations or for any reason whatsoever, the Total Revolving Extensions of Credit outstanding shall, at any time, exceed 105% of the Total Revolving Commitments (the amount of such excess, an “Excess Amount”), then within three Business Days of written notice from the Administrative Agent, the Borrowers shall first, prepay the Revolving Loans and/or Swingline Loans in an amount so as to, as nearly as possible, eliminate such Excess Amount; and second, if any Excess Amount shall remain after such prepayment, provide cash collateral or such other security on Cash Equivalents as the Administrative Agent may require in US Dollars or Canadian Dollars in an amount equal to the remaining Excess Amount, which collateral shall secure all Obligations outstanding and shall remain in the Administrative Agent’s possession until such Excess Amount is eliminated whereupon the collateral shall be released by the Administrative Agent to the Borrowers. Notwithstanding any other provision of this Agreement, including any provision contemplating a continuation or conversion, whenever an Excess Amount exists, (A) upon the last day of the Contract Period of any Banker’s Acceptance, the Canadian Borrower shall repay the Banker’s Acceptance, or (B) upon the last day of the Interest Period in respect of a Eurodollar Loan that is a Revolving Loan, the relevant Borrower shall repay the Eurodollar Loan, in each case to the extent necessary to cover the Excess Amount and any repayments under clauses (A) and (B) shall be applied in connection with prepayments made reduction of the Excess Amount.
(e) The application of any prepayment of Term Loans pursuant to this Section 4.2 2.13(a), (b) and (c) shall be applied made to the prepayment Term Loans on a pro rata basis and within each Facility of the Term Loans in accordance with Section 4.8 and Loans, first, to Base Rate the remaining Term Loans and, quarterly installments occurring within the next 12 months in the direct order of maturity and second, to Eurodollar Loansthe repayment of the then remaining Term Loan quarterly installments on a pro rata basis (based upon the then remaining principal amount of each such Term Loan quarterly installment). Each prepayment of the Term Loans under this Section 4.2 2.13 (except in the case of Revolving Loans that are ABR Loans, US Base Rate Loans or Canadian Prime Rate Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ef) The TotalAdditional Term B Commitment Notwithstanding the foregoing provisions of this Section 2.13 and subject to Section 3.5 with respect to Letters of Credit, if at any time any prepayment of the Loans pursuant to paragraph (a), (b), (c) or (d) of this Section 2.13 would result, after giving effect to the procedures set forth in this Agreement, in a Borrower being required to indemnify for breakage costs under Section 2.22 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, such Borrower may, so long as no Default or Event of Default shall have occurred and the Term Commitments of each Lender) shall terminate be continuing, in its entirety at 5:00 p.m.sole discretion, New York City timeinitially deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid) to be held as security for the obligations of such Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent, on with such cash collateral to be directly applied upon the Closingupon funding on first occurrence thereafter of the Amendment No.1last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by such Borrower); provided that such unpaid Eurodollar Loans shall continue to bear interest in accordance with Section 2.14 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid.
Appears in 2 contracts
Sources: Credit Agreement (Domtar CORP), Credit Agreement (Domtar CORP)
Mandatory Prepayments. (ai) If No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrowers are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 31, 2016 (but not including any Excess Cash Flow attributable to any period ending prior to the Closing Date), the Borrowers shall prepay the outstanding Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b) in an aggregate principal amount equal to (A) 50% of Excess Cash Flow for Holdings and its Subsidiaries on a consolidated basis for the Fiscal Year then ended, minus (B) at the option of the Borrowers, the aggregate principal amount of any Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.10(a) prior to such date (excluding any such optional prepayments made during such Fiscal Year that were deducted from the amount required to be prepaid pursuant to this Section 2.10(b)(i) in the prior Fiscal Year) (in the case of any such revolving loans prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrowers or their Subsidiaries); provided that with respect to any Fiscal Year, such percentage of Excess Cash Flow shall be incurred reduced to 25% of Excess Cash Flow if the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or issued equal to 3.50 to 1.00.
(ii) No later than the fifth Business Day following the receipt by Holdings or any Group Member after Subsidiary of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $2,500,000 in the Closing Date (other than Excluded Indebtedness)aggregate in any Fiscal Year, the Borrowers shall apply an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds to prepay the outstanding principal amount of Term Loans and Additional Term 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 Representative notifies the Administrative Agent of the Borrowers’ intention to reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business of the Combined Group, then so long as no Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of such incurrence Net Proceeds or issuance toward Net Insurance/Condemnation Proceeds to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 12 months following receipt thereof, or if Holdings, any Borrower or any of Holdings’ Subsidiaries has committed to so reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds during such 12-month period and such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay Term Loans in an amount equal to the Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Borrowers are required to 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 Net Proceeds (such Indebtedness (or Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, the “Other Applicable Indebtedness”), then the Borrowers may apply such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Term Loans as set forth and Additional 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, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with ODD) at such time; provided that the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 4.2(d)2.10(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness 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 and Additional Term Loans in accordance with the terms hereof.
(1iii) If on In the event that Holdings or any date any Group Member of its Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness of Holdings or any Asset Sale of its Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except to the extent constituting Refinancing Indebtedness incurred to refinance all or Recovery Event thena portion of the Term Loans or Additional Term Loans pursuant to Section 6,01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c)), unless a Reinvestment Notice shall be delivered the Borrowers shall, substantially simultaneously with (and in respect thereofany event not later than the next succeeding Business Day) the receipt of such Net Proceeds by Holdings or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b).
(iv) Notwithstanding any provision under this Section 2.10(b) to the contrary, (A) any amounts that would otherwise be required to be paid by the Borrowers pursuant to Section 2.10(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by a Foreign Subsidiary, such Net Insurance/Condemnation Proceeds are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the applicable Borrower agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds, Net Insurance/Condemnation 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 (including any Tax Distributions) payable or reserved against as a result thereof) to the repayment of the Term Loans and Additional Term Loans pursuant to this Section 2.10(b) to the extent provided herein; and (B) if the Borrower Representative determines in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans and Additional Term Loans pursuant to Section 2.10(b)(i) or (ii) above would result in adverse Tax consequences, 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 Borrower Representative, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.10(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.10(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrowers rather than such Foreign Subsidiary, less the amount of additional Taxes (including any Tax Distributions) that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary or (y) such Net Proceeds or Net Insurance Condemnation Proceeds shall be applied on such date toward to the prepayment repayment of Indebtedness of the Term Loans as set forth in Section 4.2(d)applicable Foreign Subsidiary; provided thatprovided, notwithstanding further, that to the foregoingextent that the repatriation of any Net Proceeds, on each Reinvestment Prepayment DateNet Insurance/Condemnation Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have an adverse Tax consequence, an amount equal to the Reinvestment Prepayment Amount with respect Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clauses (x) and (y), shall be promptly applied to the relevant Reinvestment Event shall be applied toward the prepayment repayment of the Term Loans and Additional Term Loans pursuant to Section 2.10(b) as set forth in Section 4.2(dotherwise required above (without regard to this clause (iv)).
(2v) Notwithstanding Each Lender may elect, by notice to the foregoingAdministrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans and Additional Term Loans required to be made by the Borrowers pursuant to this Section 2.10(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrowers and shall be added (without duplication) to the calculation of the Available Amount in accordance with the definition thereof; provided, further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.10(b)(iii) above to the extent that (and for so long as) any of constituting Refinancing Indebtedness incurred to refinance all or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment portion of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made or Additional Term Loans pursuant to this Section 4.2 shall be applied 6.01(p) or Replacement Term Loans incurred to the prepayment of the refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 4.8 9.02(c). If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified by the Administrative Agent, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans and firstAdditional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Term Loans pursuant to Base Rate this Section 2.10(b) shall be applied ratably to each Class of Term Loans and, second, (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness incurred to Eurodollar Loans. Each prepayment refinance all or a portion of the Term Loans under this pursuant to Section 4.2 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be accompanied by accrued interest applied solely to the date each applicable Class of such prepayment on the amount prepaid.
refinanced or replaced Term Loans), (eB) The TotalAdditional with respect to each Class of Term B Commitment Loans, all accepted prepayments under Section 2.10(b)(i), (and the Term Commitments of each Lenderii) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1or
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Mandatory Prepayments. (ai) If No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrowers are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 31, 2016 (but not including any Excess Cash Flow attributable to any period ending prior to the Closing Date)2018, the Borrowers shall prepay the outstanding Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b) in an aggregate principal amount equal to (A) 50% of Excess Cash Flow for Holdings and its Subsidiaries on a consolidated basis for the Fiscal Year then ended, minus (B) at the option of the Borrowers, the aggregate principal amount of any Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.10(a) prior to such date (excluding any such optional prepayments made during such Fiscal Year that were deducted from the amount required to be prepaid pursuant to this Section 2.10(b)(i) in the prior Fiscal Year) (in the case of any such revolving loans prepaid, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrowers or their Subsidiaries); provided that with respect to any Fiscal Year, such percentage of Excess Cash Flow shall be incurred reduced to 25% or issued 0% of Excess Cash Flow if the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or equal to 3.50 to2.25:1.00 or 1.50:1.00, respectively.
(ii) No later than the fifth Business Day following the receipt by Holdings or any Group Member after Subsidiary of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $2,500,000 in the Closing Date (other than Excluded Indebtedness)aggregate in any Fiscal Year, the Borrowers shall apply an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds to prepay the outstanding principal amount of Term Loans and Additional Term 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 Representative notifies the Administrative Agent of the Borrowers’ intention to reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business of the Combined Group, then so long as no Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of such incurrence Net Proceeds or issuance toward Net Insurance/Condemnation Proceeds to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 12 months following receipt thereof, or if Holdings, any Borrower or any of Holdings’ Subsidiaries has committed to so reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds during such 12-month period and such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay Term Loans in an amount equal to the Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Borrowers are required to 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 Net Proceeds (such Indebtedness (or Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, the “Other Applicable Indebtedness”), then the Borrowers may apply such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Term Loans as set forth and Additional 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, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with OID) at such time; provided that the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 4.2(d)2.10(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness 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 and Additional Term Loans in accordance with the terms hereof.
(1iii) If on In the event that Holdings or any date any Group Member of its Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness of Holdings or any Asset Sale of its Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except to the extent constituting Refinancing Indebtedness incurred to refinance all or Recovery Event thena portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c)), unless a Reinvestment Notice shall be delivered the Borrowers shall, substantially simultaneously with (and in respect thereofany event not later than the next succeeding Business Day) the receipt of such Net Proceeds by Holdings or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b).
(iv) Notwithstanding any provision under this Section 2.10(b) to the contrary, (A) any amounts that would otherwise be required to be paid by the Borrowers pursuant to Section 2.10(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by a Foreign Subsidiary, such Net Insurance/Condemnation Proceeds are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the applicable Borrower agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds, Net Insurance/Condemnation 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 (including any Tax Distributions) payable or reserved against as a result thereof) to the repayment of the Term Loans and Additional Term Loans pursuant to this Section 2.10(b) to the extent provided herein; and (B) if the Borrower Representative determines in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans and Additional Term Loans pursuant to Section 2.10(b)(i) or (ii) above would result in adverse Tax consequences, 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 Borrower Representative, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.10(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.10(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrowers rather than such Foreign Subsidiary, less the amount of additional Taxes (including any Tax Distributions) that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary or (y) such Net Proceeds or Net Insurance Condemnation Proceeds shall be applied on such date toward to the prepayment repayment of Indebtedness of the Term Loans as set forth in Section 4.2(d)applicable Foreign Subsidiary; provided thatprovided, notwithstanding further, that to the foregoingextent that the repatriation of any Net Proceeds, on each Reinvestment Prepayment DateNet Insurance/Condemnation Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have an adverse Tax consequence, an amount equal to the Reinvestment Prepayment Amount with respect Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clauses (x) and (y), shall be promptly applied to the relevant Reinvestment Event shall be applied toward the prepayment repayment of the Term Loans and Additional Term Loans pursuant to Section 2.10(b) as set forth in Section 4.2(dotherwise required above (without regard to this clause (iv)).
(2v) Notwithstanding Each Lender may elect, by notice to the foregoingAdministrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans and Additional Term Loans required to be made by the Borrowers pursuant to this Section 2.10(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrowers and shall be added (without duplication) to the calculation of the Available Amount in accordance with the definition thereof; provided, further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.10(b)(iii) above to the extent that (and for so long as) any of constituting Refinancing Indebtedness incurred to refinance all or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified by the Administrative Agent, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred any amendment to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied this Agreement in connection with prepayments made any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this Section 4.2 2.10(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Term Loans, all accepted prepayments under Section 2.10(b)(i), (ii) or (iii) shall be applied first against the next 6 scheduled installments of principal due in respect of the Term Loans in accordance with Section 4.8 direct order of maturity until such installments are paid in full and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment then against remaining scheduled installments of principal due in respect of the Term Loans on a pro rata basis, and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage. The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to ABR Loans to the full extent thereof before application to the LIBO Rate Loans.
(vii) In the event and on each Business Day on which the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitments, the Borrowers shall prepay the Revolving Loans or Swingline Loans and/or reduce LC Exposure, in an aggregate amount equal to such excess by taking any of the following actions as it shall determine at its sole discretion: (A) prepayment of Revolving Loans or Swingline Loans or (B) with respect to such excess LC Exposure, deposit of Cash in the LC Collateral Account or “backstopping” or replacement of such Letters of Credit, in each case, in an amount equal to 103% of such excess LC Exposure (but in any event, such payments of Revolving Loans or Swingline Loans and such deposits of Cash or “backstopping” or replacements of Letters of Credit shall in the aggregate be equal to such excess) and pursuant to arrangements (and with “backstop” letter of credit issuers) reasonably acceptable to the applicable Issuing Banks.
(viii) The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 4.2 2.10(b)(i), (ii) or (iii), a certificate signed by a Responsible Officer of the Borrower Representative setting forth in reasonable detail the calculation of the amount of such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest to the date as required by Section 2.12. All prepayments of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each LenderBorrowings under this Section 2.10(b) shall terminate be subject to Section 2.11(e) (in its entirety at 5:00 p.m.the case of prepayments under clause (iii) above as part of a Repricing Transaction) and Section 2.15, New York City time, on the Closingupon funding on the Amendment No.1but shall otherwise be without premium or penalty.
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Mandatory Prepayments. (a) If Unless the Required Lenders shall otherwise agree, if any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2) shall be incurred by a Borrower or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), of its Restricted Subsidiaries an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Lenders shall otherwise agree, if on any date a Borrower or any Group Member 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, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that, that notwithstanding the foregoing, on each 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 Prepayment Amount with respect to the relevant Reinvestment Event shall not actually expended by such Trigger Date; provided further that such Net Cash Proceeds may be applied toward the applied, along with such prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) the Borrowers elect, or are required by the terms thereof), to purchase, redeem or repay any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment Permitted First Priority Refinancing Debt, pursuant to Section 4.2(b)(1) (each the agreements governing such Asset Sale and Recovery Eventother Indebtedness, on not more than a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements pro rata basis with respect to such prepayments of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionTerm Loans.
(c) The Borrower Unless the Required Lenders shall otherwise agree, if, for any fiscal year of Holdings commencing with the fiscal year ending on or nearest to January 31, 2015, there shall be Excess Cash Flow, the Borrowers shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of an amount equal to (i) the Excess Cash Flow for the related Percentage of such Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the sum of (A) the aggregate amount of all prepayments or cash collateralization of ABL Indebtedness during such Excess Cash Flow Payment Period fiscal year or, at the Borrowers’ option of and without duplication across fiscal years, after such fiscal year but prior to the Borrower, on or prior such Excess Cash Flow Application Date, to the extent accompanied by permanent optional reductions of the commitments under the ABL Facility and (B) all optional prepayments of the Term Loans during such fiscal year or, at the Borrowers’ option and without duplication across fiscal years, after such fiscal year but prior to the Excess Cash Flow Application Date, pursuant to Section 2.11(a) and Section 2.27 and all optional prepayments or repurchases of Permitted First Priority Refinancing Debt during such fiscal year or, at the Borrowers’ option and without duplication across fiscal years, after such fiscal year but prior to the Excess Cash Flow Application Date (with the amount of Term Loans prepaid pursuant to Section 2.27 or Permitted First Priority Refinancing Debt being prepaid or repurchased being equal to the lesser of the aggregate principal amount thereof and the cash purchase price therefor), 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 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days Business Days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding anything to the contrary in Section 2.12(d), 2.18 or 10.7, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Term B Commitment Loans (and which, for avoidance of doubt, includes any New Term Loans) (such amounts, the “Prepayment Amount”), at any time when Term Commitments Loans remain outstanding, the Borrowers will, in lieu of each Lenderapplying such amount to the prepayment of Term Loans as provided in paragraph (d) shall terminate in its entirety at 5:00 p.m., New York City timeabove, on the Closingupon funding 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 Borrowers, the Administrative Agent will send to each Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit J (or such other form approved by the Administrative Agent), and shall include an offer by the Borrowers to prepay on the Amendment No.1date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Mandatory Prepayment Date, the Borrowers shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted (it being understood that any Lender’s failure to object prior to the relevant Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of such Prepayment Option Notice and the amount to be prepaid in respect of Term Loans held by such Lender) prepayment as described above; provided that, following such offer and application, any amount remaining unapplied shall be offered by the Administrative Agent ratably to the Term Lenders not so declining such prepayment as a further prepayment hereunder (with such Lenders having the right to accept or decline such further prepayment at the time and in the manner specified by the Administrative Agent) and, to the extent such Term Lenders decline to accept further prepayment, any amount remaining unapplied (collectively, the “Declined Amounts”) shall be returned to the Borrowers. Notwithstanding anything herein to the contrary, the Lenders shall not be permitted to decline proceeds from any Credit Agreement Refinancing Indebtedness.
(f) Notwithstanding any other provisions of this Section 2.12, (i) to the extent that the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable organizational documents or (z) prohibited, delayed or restricted any agreement permitted by Section 7.13, an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow that would be so affected were the Borrowers 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 so long, but only so long, as the applicable local law or applicable organizational documents would not otherwise permit repatriation to the United States (the Borrowers hereby agree to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the Borrowers do not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow 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 repatriation of any of such affected Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable organizational documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than two Business Days) applied (net of an amount equal to the additional taxes that would be payable or reserved against as a result of a repatriation and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrowers to the repayment of the Term Loans pursuant to this Section 2.12 and (ii) to the extent that the Borrowers have determined in good faith that repatriation of any Foreign Subsidiary Excess Cash Flow would have adverse tax cost consequences with respect to such Foreign Subsidiary Excess Cash Flow, an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.12; provided that for purposes of this Section 2.12, Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such period, divided by (ii) the Consolidated EBITDA of Holdings and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations). For the avoidance of doubt, nothing in this Agreement requires, or is intended to require, any actual repatriation of any Foreign Subsidiary Excess Cash Flow.
Appears in 2 contracts
Sources: Credit Agreement (Vince Holding Corp.), Credit Agreement (Apparel Holding Corp.)
Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2, other than Excluded Indebtednessparagraph (l) thereof), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,500,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(d2.11(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2015, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply prepay an aggregate amount of Term Loans in an amount equal to (A) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus fiscal year covered by the financial statements for such fiscal year (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans to be applied as set forth in Section 4.2(d2.11(d) below), minus (B) solely to the extent not funded with the proceeds of Indebtedness, the aggregate amount of all optional prepayments of the Term Loans pursuant to Section 2.10 made during such fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.17(b). The application of any prepayment pursuant to Section 2.11 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding any other provisions of Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term B Commitment Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Commitments Loans pursuant to Section 2.11; provided, that no such prepayment of each Lenderthe Term Loans pursuant to Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).
(f) Notwithstanding anything to the contrary contained in this Section 2.11, if any Term Lender shall notify the Administrative Agent (i) on the date of such prepayment, with respect to any prepayment under Section 2.11(a) or (b) or (ii) at least one Business Day prior to the date of a prepayment under Section 2.11(c) that it wishes to decline its share of such prepayment, such share (the “Declined Prepayment Amount”) shall terminate be offered in its entirety at 5:00 p.m.accordance with the mandatory prepayment provisions of the Second Lien Credit Agreement (or the applicable corresponding provisions of any document governing any Permitted Refinancing Indebtedness with respect thereto) and, New York City timeif declined by the lenders thereunder, on may be retained by the Closingupon funding on the Amendment No.1Borrower.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.)
Mandatory Prepayments. (a) If the Borrower or any of its Subsidiaries shall issue debt securities or instruments pursuant to a public offering or private placement (excluding any Indebtedness incurred in accordance with Section 7.2), then on the next Business Day following such issuance, the Term Loans shall be incurred or issued prepaid by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence issuance (or issuance toward the prepayment of such lesser amount to repay the Term Loans as set forth in full). The provisions of this Section 4.2(d)do not constitute a consent to the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries not permitted under Section 7.2.
(1b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, then on the next Business Day following the receipt of such Net Cash Proceeds, the Term Loans shall be prepaid by an amount equal to 100% the amount of such Net Cash Proceeds shall be applied on (or such date toward the prepayment of lesser amount to repay the Term Loans as set forth in Section 4.2(dfull); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, Date the Term Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment Event. The provisions of the Term Loans as set forth in this Section 4.2(d).
(2) Notwithstanding the foregoing, do not constitute a consent to the extent that (and for so long as) any of or all of the Net Cash Proceeds consummation of any Asset Sale or any Recovery Event Disposition not permitted by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction7.5.
(c) The If, for any fiscal year of the Borrower shallcommencing with the fiscal year ending December 27, 2007, there shall be Excess Cash Flow, then, on each the relevant Excess Cash Flow Application Date, apply the Term Loans shall be prepaid by an amount equal to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on (or prior such Excess Cash Flow Application Date, toward the prepayment of lesser amount to repay the Term Loans as set forth in Section 4.2(dfull). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied Notwithstanding anything to the prepayment contrary herein, mandatory prepayments of the Term Loans shall not be required to the extent such prepayment would result in accordance with Section 4.8 and first, a taxable gain for US Federal income tax purposes at such time to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment any member of the Term Loans under this Section 4.2 shall be accompanied Borrower as a direct result thereof, with any limitations in the prepayment being supported by accrued interest reasonably detailed calculations presented to the Administrative Agent within five Business Days of the date of on which such prepayment on the amount prepaidwould otherwise be due.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (National CineMedia, Inc.), Credit Agreement (National CineMedia, Inc.)
Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded IndebtednessIndebtedness incurred in accordance with Section 7.2(i))), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e); provided, that the foregoing percentage shall be reduced to 50% if the Consolidated Leverage Ratio as of the last day of the period of four consecutive fiscal quarters most recently ended is less than or equal to 2.0 to 1.0 and the Consolidated Fixed Charge Coverage Ratio as of the last day of the period of four consecutive fiscal quarters most recently ended is greater than 1.0 to 1.0.
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e); provided provided, that, notwithstanding the foregoing, (i) up to $1,000,000 of the aggregate Net Cash Proceeds of Asset Sales and Recovery Events may be excluded from the foregoing requirement pursuant to a Reinvestment Notice in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any fiscal year of the Borrower, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) If on any date any Group Member shall receive Net Cash Proceeds from any capital contribution to, or issuance of Capital Stock of, any Group Member (other than pursuant to any employee stock, stock option compensation plan or an equity investment by the Equity Investors or any of their respective Affiliates to the Borrower), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such capital contribution or issuance toward the prepayment of the Loans as set forth in Section 2.11(e); provided, that the foregoing percentage shall be reduced to 50% to the extent that the Consolidated Leverage Ratio on a pro forma basis after giving effect such contribution or issuance is less than or equal to 2.0 to 1.0.
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.17(b). The application of any prepayment pursuant to Section 2.11 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ef) The TotalAdditional Term B Commitment (and No repayment or prepayment pursuant to this Section 2.11 or Section 2.10 shall affect any of the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1Borrower’s obligations under any Swap Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Virgin Mobile USA, Inc.), Credit Agreement (Virgin Mobile USA, Inc.)
Mandatory Prepayments. (ai) If for any Indebtedness reason the Revolving Outstandings at any time exceed the Aggregate Revolving Commitments then in effect, the Borrower shall be incurred or issued by any Group Member after immediately prepay Revolving Loans and/or Cash Collateralize the Closing Date (other than Excluded Indebtedness), L/C Obligations in an aggregate amount equal to 100% such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans the Revolving Outstandings exceed the Aggregate Revolving Commitments then in effect.
(ii) If on any date the Borrower or any of its Subsidiaries (except its Excluded Subsidiaries, and Pinnacle Towers and its Subsidiaries prior to the date of the Permitted Securitization) shall receive Net Cash Proceeds from (A) any incurrence of Indebtedness by the Borrower or any such Subsidiaries, other than Indebtedness permitted pursuant to Section 7.01, (B) any Asset Sale, the Net Cash Proceeds thereof of which, when taken together with the Net Cash Proceeds of all other Asset Sales consummated from the Closing Date, exceed $1,000,000 or (C) any Extraordinary Receipts, the Net Cash Proceeds of which exceed $50,000 from any individual or series of events, then 100% of such Net Cash Proceeds (1) shall be applied on the date third Business Day following receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans, or (2) if no there are Loans as set forth in Section 4.2(d)outstanding, shall be used to Cash Collateralize the Letters of Credit.
(1iii) If on any date the Borrower or any Group Member of its Subsidiaries (except its Excluded Subsidiaries, and Pinnacle Towers and its Subsidiaries prior to the date of the Permitted Securitization) shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thenEvent, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on the third Business Day following receipt of such date Net Cash Proceeds toward the prepayment of the Term Loans, or, if there are no Loans as set forth in Section 4.2(d)outstanding, to Cash Collateralize the Letters of Credit; 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 that such prepayment shall not be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or required if all of the Net Cash Proceeds following requirements are satisfied: (i) the aggregate amount of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each all such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Lawnot greater than $5,000,000, the Group Members shall be treated as having received (ii) such Net Cash Proceeds equal are (A) reinvested in other like assets within 180 days of the Recovery Event that gave rise to the amount such Net Cash Proceeds or (B) committed to be reinvested in other like assets within 180 days of such reduction.
Recovery Event and reinvested in such assets within 270 days of such Recovery Event, (ciii) The Borrower shall, on each Excess such Net Cash Flow Application Date, apply Proceeds are held in a segregated deposit account that is subject to a perfected first priority security interest in favor of Administrative Agent for the ECF Percentage benefit of the excessAgents and the Lenders, if any, of and (iiv) Excess the reinvestment or commitment to reinvest such Net Cash Flow for the related Excess Cash Flow Payment Period minus Proceeds pursuant to clause (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at above is pre-approved in writing by the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth Required Lenders in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenderstheir reasonable discretion.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (Global Signal Inc), Credit Agreement (Global Signal Inc)
Mandatory Prepayments. (a) 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 Holdings or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)of its Restricted Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on not later than one Business Day after the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member Loan Party shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on not later than five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that, that notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward and (y) on the prepayment of 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 4.2(d).
(22.12(d) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the an amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such reductionTrigger Date.
(c) The Borrower Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of Holdings commencing with the fiscal year ending September 30, 2012, there shall be Excess Cash Flow, Holdings shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of an amount equal to (i) the Excess Cash Flow for the related Percentage of such Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such Excess Cash Flow Payment Period or, at fiscal year to the option extent accompanied by permanent optional reductions of the BorrowerRevolving Commitments and all optional prepayments of the Term Loans during such fiscal year, on or prior in each case other than to the extent any such Excess Cash Flow Application Dateprepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment If as of the last Business Day of each calendar month (computed by the Administrative Agent using the current exchange rate as of such Business Day and promptly notified to the Multicurrency Revolving Lenders and the Borrower) the Dollar Amount of the aggregate outstanding principal amount of the Revolving Loans shall exceed 105% of the aggregate Revolving Commitments, the Borrower shall, within five Business Days after the Borrower’s receipt of such notice, prepay Multicurrency Revolving Loans in such amounts as shall be necessary so that after giving effect thereto the aggregate outstanding principal amount of such Revolving Loans does not exceed the Revolving Commitments as of such Business Day.
(f) Notwithstanding anything to the contrary in Sections 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment pursuant to this Section 2.12 that is allocated to Tranche B Term Commitments Loans and each Tranche of New Term Loans (such amount for such Class, the “Prepayment Amount”, and each Lendersuch Class, an “Applicable Class”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such Prepayment Amount to the Applicable Class of Term Loans as provided in paragraph (d) shall terminate in its entirety at 5:00 p.m., New York City timeabove, on the Closingupon funding date specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender and each New Term Lender a notice substantially in the form of Exhibit L (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender and each New Term Lender a Prepayment Option Notice, which shall be in a form reasonably satisfactory to the Administrative Agent, and shall include an offer by the Borrower to prepay, on the Amendment No.1date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, each Applicable Class of Loans of such Lender by an amount equal to the portion of the Prepayment Amount for such Class indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Applicable Class of Term Loans. Each Tranche B Term Lender and each New Term Lender may reject all or a portion of its Prepayment Amount of the Applicable Class by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York time) one Business Day after such Lender’s receipt of the Prepayment Option Notice (which notice shall specify the principal amount of the Prepayment Amount for each Applicable Class to be rejected by such Lender); provided that any Lender’s failure to so reject such Prepayment Amount for any Applicable Class shall be deemed an acceptance by such Term Lender of such Prepayment Option Notice for such Applicable Class and the amount to be prepaid in respect of Term Loans of such Applicable Class held by such Lender. On the Mandatory Prepayment Date, the Borrower shall (i) pay to the relevant Lenders the aggregate amount necessary to prepay that portion of the outstanding Term Loans of the Applicable Class in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above and (ii) prepay outstanding Tranche A Term Loans in an aggregate amount equal to the amounts declined by Lenders as described above; provided that, upon the making of such prepayments, any amount remaining unapplied (i.e., after the payment in full of the Tranche A Term Loans) shall be returned to the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Wesco Aircraft Holdings, Inc), Credit Agreement (Wesco Aircraft Holdings, Inc)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after No later than the Closing Date (other than Excluded Indebtedness), an amount equal to 100% third Business Day following the determination of the amount of Net Cash Proceeds thereof shall be applied on the date received in respect of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale occurring on or Recovery Event thenafter the Funding Date, unless a Reinvestment Notice the Borrower shall be delivered in respect thereof, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(d); provided, however, that if (i) at any time prior to the due date of such prepayment, the Borrower delivers a certificate of its Financial Officer to the Administrative Agent setting forth its intent to reinvest, or to cause the Subsidiaries to reinvest, the Net Cash Proceeds received in respect thereof, not in excess of $250,000,000 in the aggregate for all Asset Sales, within 365 days after the receipt thereof, in assets that are used or useful in the business of the Borrower and the Subsidiaries and (ii) no Default or Event of Default shall have occurred and be continuing at the time such certificate is delivered, then no prepayment of Term Loans shall be required pursuant to this paragraph (a), except to the extent such Net Cash Proceeds are not so applied on by the expiration of such date toward the 365-day period, at which time a prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward required in the prepayment amount of the Term Loans as set forth in Section 4.2(d)any such unapplied Net Cash Proceeds.
(2b) Notwithstanding No later than the foregoing, to earlier of (i) 90 days after the extent that (and for so long as) any end of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization fiscal year of the Borrower, commencing with the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; providedfiscal year ending on December 31, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law2010, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus and (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred with respect to such fiscal year are delivered pursuant to Section 5.04(a), the Borrower shall prepay outstanding Term Loans in accordance with Section 7.1(a2.13(d) in an aggregate principal amount equal to 50% (or, if the Consolidated Senior Secured Leverage Ratio as of the last day of such fiscal year shall have been equal to or less than 2.25 to 1.00, 25%, or if the if the Consolidated Senior Secured Leverage Ratio as of the last day of such fiscal year shall have been equal to or less than 1.75 to 1.00, 0%) of the amount of Excess Cash Flow for such fiscal year or, in the case of the fiscal year ending December 31, 2010, for the partial fiscal year commencing on July 1, 2010 and ending December 31, 2010. The Borrower may elect by written notice to the Administrative Agent at the time of the Borrower with respect to which such a prepayment is made are required to be delivered made in any fiscal year under this paragraph (b) to apply against the amount of such prepayment all or any specified portion of an optional prepayment previously made during the same fiscal year under Section 2.12(a); provided that such optional prepayment was applied to the Lenders.
Term Loans in the same manner as a prepayment under this paragraph (db) Amounts is required to be applied, in which case the amount of the optional prepayment so applied in connection with prepayments will for all purposes hereof (including without limitation for purposes of calculating Excess Cash Flow) be deemed to be a mandatory prepayment made pursuant to this paragraph (b).
(c) In the event that the Borrower or any Subsidiary shall receive Net Cash Proceeds from the issuance or other disposition of Indebtedness for money borrowed of the Borrower or such Subsidiary after the Funding Date (other than Indebtedness for money borrowed permitted pursuant to Section 4.2 6.01 (other than paragraph (m) thereof)) the Borrower shall reasonably promptly after (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by the Borrower or any Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(d), provided that the Net Cash Proceeds from the issuance of Permitted Notes pursuant to Section 6.01(m) need not be applied to the prepayment of the Term Loans in accordance with Section 4.8 and firstto the extent that the Incremental Commitment Amount is, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment at the election of the Borrower and simultaneously with the receipt of such Net Cash Proceeds, reduced by the amount of such Net Cash Proceeds not so applied. The Borrower will give written notice to the Administrative Agent not later than the date on which any issuance of Permitted Notes is consummated of any such election to reduce the then-current Incremental Commitment Amount, specifying the amount of such reduction, provided that the amount of any such reduction shall not exceed the then-current amount of the Incremental Commitment Amount.
(d) Mandatory prepayments of Term Loans under this Section 4.2 pursuant to paragraphs (a), (b) and (c) above shall be accompanied by accrued interest allocated pro rata among the Classes of Term Loans and shall be applied to reduce ratably the remaining Repayment Amounts for such Class; provided, however, that, subject to Section 2.16 (i) the Borrower may allocate and apply the amount of Excess Cash Flow required to be used to prepay Term Loans hereunder in any year to the date Repayment Amounts coming due within two years of such required prepayment on and (ii) the amount prepaidBorrower may allocate and apply up to $100,000,000 of Excess Cash Flow required to be used to prepay Term Loans hereunder in any year to any Class or Classes of Term Loans and the remaining Repayment Amounts for each such Class at its discretion.
(e) The TotalAdditional Term B Commitment Borrower shall deliver to the Administrative Agent, (i) at the time of each prepayment by such Borrower required under paragraph (a), (b) or (c) above, a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) at least three Business Days prior to the time of each prepayment required under this Section 2.13, a notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid (which specification shall comply with this Section 2.12) and the Term principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.15 and shall be accompanied by accrued but unpaid interest on the principal amount paid to but excluding the date of payment, but shall otherwise be without premium or penalty.
(f) To the extent consistent with paragraph (d) above, amounts to be applied pursuant to this Section 2.13 to the prepayment of Loans shall be applied to reduce outstanding ABR Loans prior to being applied to reduce Eurodollar Loans. In the case of any mandatory prepayment of Eurodollar Loans pursuant to this Section 2.13 (other than any mandatory prepayment of Loans of any Class required in connection with the expiration or termination in whole of Commitments of each Lendersuch Class), the Borrower may, at its option, deposit into the Prepayment Account (as defined below) an amount in cash equal to such mandatory prepayment rather than prepaying such Loan on the date otherwise due pursuant to this Section 2.13. The Administrative Agent shall terminate apply any cash deposited into the Prepayment Account solely to prepay Eurodollar Loans with respect to which such deposit has been made on the last day of the applicable Interest Periods (or on an earlier date if (i) directed to do so by the Borrower or (ii) an Event of Default shall have occurred and is continuing). For purposes of this Agreement, the term “Prepayment Account” shall mean an account established by the Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this paragraph (f). The Borrower hereby grants to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, a security interest in the Prepayment Account to secure the Obligations owed to such Persons. The Administrative Agent will, at the request of the Borrower, invest amounts on deposit in the Prepayment Account in Permitted Investments that mature prior to the last day of the applicable Interest Periods of the Eurodollar Borrowings to be prepaid; provided, however, that (A) the Administrative Agent shall not be required to make any investment that, in its entirety at 5:00 p.m.sole judgment, New York City timewould result in any violation of any law, statute, rule or regulation and (B) the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if a Default or an Event of Default shall have occurred and be continuing. The Borrower shall indemnify the Administrative Agent for any losses relating to the investments so that the amount available to prepay Eurodollar Borrowings on the Closingupon funding day due pursuant to the third preceding sentence is not less than the amount that would have been available had no investments been made pursuant thereto. So long as no Default or Event of Default shall have occurred and be continuing, interest or profits, if any, resulting from investment of amounts on deposit in the Amendment No.1Prepayment Account shall be distributed by the Administrative Agent to the Borrower upon the payment of the Eurodollar Borrowing with respect to which such deposit has been made. Other than any interest or profits resulting from such investments, the Prepayment Account shall not bear interest.
Appears in 2 contracts
Sources: Credit Agreement (SMURFIT-STONE CONTAINER Corp), Credit Agreement (Smurfit Stone Container Corp)
Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d), provided, however, that the foregoing requirements of this paragraph (a)(ii) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date SuperHoldings, Holdings, the Borrower or any Group Member of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Borrower, or $2,000,000 in any fiscal year of the Borrower immediately succeeding a fiscal year of the Borrower as of the last day of which the Consolidated Leverage Ratio is less than or equal to 4.0 to 1.0, 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 as set forth in Section 4.2(d2.12(d).
(2) Notwithstanding ; and provided further, that notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the such Net Cash Proceeds of any Asset Sale or any Recovery Event by which are not subject to a Foreign Subsidiary giving rise Reinvestment Notice shall not be required to mandatory be applied toward the prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, Term Loans until the calculation date upon which the aggregate amount of such Net Cash Proceeds shall be reduced received by the amount so prohibited or delayed; providedSuperHoldings, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of LawHoldings, the Group Members Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans shall be treated as having received Net Cash Proceeds equal to the amount of such reductionexceed $1,000,000.
(c) The Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending March 31, 2005, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten (10) days three months after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Loans. The application of any prepayment pursuant to this Section 4.8 and first, 2.12 shall be made first to Base Rate Loans and, second, and second to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.. Partial prepayments of the Term Loans pursuant to this Section 2.12 shall be applied in the order set forth in Section 2.18
(e) If, at any time the Total Revolving Extensions of Credit exceeds the lesser of (A) the Borrowing Base in effect on such date and (B) the Total Revolving Credit Commitments, the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(f) The TotalAdditional Term B Commitment (and the Term Commitments Borrower agrees that during each calendar year there shall be a period of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1least 30 consecutive days during which there are no Revolving Extensions of Credit outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Nebraska Book Co), Credit Agreement (NBC Acquisition Corp)
Mandatory Prepayments. (a) If any Indebtedness On each Payment Date, the Borrower shall be incurred or issued by any Group Member after prepay the Closing Date (other than Excluded Indebtedness), an principal amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth Loan outstanding hereunder in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment amount by which the Monthly Payment Amount with respect computed as of the end of the second month preceding the month in which such Payment Date falls exceeds the interest due on the Loan on such Payment Date. In addition, on any Payment Date on which the outstanding principal amount of the Loan exceeds, or would pursuant to any of the provisions hereof exceed, the Maximum Principal Amount, the Borrower will prepay the outstanding principal amount of the Loan by an amount sufficient to reduce the outstanding principal amount on such Payment Date to the relevant Reinvestment Event Maximum Principal Amount. Borrower will give the Lender at least five Business Days prior notice of the aggregate principal amount to be prepaid on each Payment Date pursuant to this paragraph. Prepayments of principal under this paragraph shall be without premium or penalty. All prepayments due under this paragraph shall be applied toward first to the prepayment payment of all accrued but unpaid interest on the Term Loans as set forth in Section 4.2(d)Tranche A Loan, then to the principal due on the Tranche A Loan, then to the principal due on the Tranche B Loan.
(2b) Notwithstanding If on any Semiannual Payment Date (i) the foregoingaggregate outstanding principal amount of the Loan exceeds, or would pursuant to the extent that (and for so long as) any of or all the provisions hereof exceed, the Scheduled Principal Amount for such date and (ii) the corresponding Trailing Twelve Month Cash Flow for the twelve month period ending at the end of the Net second preceding month is less than the Required Trailing Twelve Month Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each Flow for such Asset Sale and Recovery EventSemiannual Payment Date, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization Borrower shall on such Payment Date prepay the outstanding principal amount of the Borrower, the calculation of Net Cash Proceeds shall be reduced Loan by the amount so prohibited or delayed; provided, that once necessary to reduce the outstanding principal balance of the Loan to the Scheduled Principal Amount applicable to such repatriation Semiannual Payment Date. Borrower will give the Lender at least five Business Days' prior notice of any such affected Net Cash Proceeds is permitted the aggregate principal amount to be prepaid on the Loan on each Semiannual Payment Date pursuant to this paragraph. Prepayments of principal under the applicable local Requirements of Law, the Group Members this paragraph shall be treated as having received Net Cash Proceeds equal without premium or penalty, and shall be made together with payment of all accrued but unpaid interest on the outstanding principal amount of the Loan to the amount date of such reductionprepayment. All prepayments due under this paragraph shall be applied first to the payment of all accrued but unpaid interest on the Tranche A Loan, then to the principal due on the Tranche A Loan, then to the principal due on the Tranche B Loan.
(c) The If any Indebtedness is outstanding, Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage shall cause Lender to receive all of the excessTranche A Warrant Proceeds. Any Tranche A Warrant Proceeds received by Lender shall be applied to the outstanding Indebtedness in the following order: First to the payment of all accrued but unpaid interest on the Tranche A Loan, if anythen to the principal due on the Tranche A Loan, of (i) Excess Cash Flow for then to the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period orprincipal due on the Tranche B Loan, at the option and finally to any other fixed, agreed upon or liquidated amount of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)outstanding Indebtedness. Each such prepayment Any surplus shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred paid to in Section 7.1(a) for the fiscal year of the Borrower with respect to which within 3 Business Days after Lender's receipt of such prepayment is made are required to be delivered to the Lendersproceeds.
(d) Amounts If the Anschutz Option is exercised, Lender shall be entitled to be applied receive from Anschutz the Gross Warrant Proceeds in accordance with the terms of the Anschutz Option. All Net Warrant Proceeds received by Lender in connection with prepayments made pursuant to this Section 4.2 the exercise of the Anschutz Option shall be applied to the prepayment outstanding Indebtedness in the following order: First to the principal due on the Tranche B Loan, then to the payment of all accrued but unpaid interest on the Tranche A Loan, then to the principal due on the Tranche A Loan, and finally to any other fixed, agreed upon or liquidated amount of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loansoutstanding Indebtedness. Each prepayment of the Term Loans under this Section 4.2 Any surplus shall be accompanied by accrued interest paid to the date Borrower within 3 Business Days after Lender's receipt of such prepayment on the amount prepaidproceeds.
(e) The TotalAdditional Term If after the expiration of the Anschutz Option the Tranche B Commitment (Warrant is transferred by Lender and any Indebtedness is outstanding, any proceeds payable to Borrower as payment of the Term Commitments exercise price of each Lender) the Tranche B Warrant shall terminate be paid to Lender and applied to the outstanding Indebtedness in its entirety at 5:00 p.m., New York City time, the following order: First to the principal due on the Closingupon funding Tranche B Loan, then to the payment of all accrued but unpaid interest on the Amendment No.1Tranche A Loan, then to the principal due on the Tranche A Loan, and finally to any other fixed, agreed upon or liquidated amount of the outstanding Indebtedness. Any surplus shall be paid to the Borrower within 3 Business Days after Lender's receipt of such proceeds.
(f) If the Lender exercises any of the Tranche B Warrant, the Lender may offset the exercise price owed by the Lender to the Borrower in connection with such exercise against the outstanding principal balance of the Loan, all accrued but unpaid interest thereon, and any other fixed, agreed upon or liquidated amount of the Indebtedness and such offset shall be applied in the order set forth in Paragraph (e) above.
(g) If prior to the satisfaction of the Indebtedness Borrower issues Common Stock pursuant to the exercise of any of the Warrants and Lender fails to receive the full payment it is entitled to from the party exercising such Warrants, then Borrower shall immediately pay to Lender an amount sufficient to cover the shortfall. If at any time prior to the satisfaction of the Indebtedness Borrower receives any proceeds in connection with the exercise of any of the Warrants, Borrower shall immediately deliver such proceeds to Lender. Any payment made by Borrower pursuant to the preceding two sentences shall be applied against the Loan in the order provided for in the applicable paragraph of this Section 2.08 based on the Warrant that was exercised.
Appears in 2 contracts
Sources: Loan Agreement (Forest Oil Corp), Loan Agreement (Forest Oil Corp)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member Within five days after delivery to Agent of Borrowers’ audited annual financial statements pursuant to Section 9.1.2 (the Closing Date (other than Excluded Indebtedness“ECF Payment Date”), an amount equal commencing with the delivery to 100% Agent of the Net audited annual financial statements for the Fiscal Year ending December 31, 2017, Borrowers shall (i) deliver to Agent a written calculation of Excess Cash Proceeds thereof shall be applied on Flow for such Fiscal Year, certified by a Senior Officer of the date Parent, and (ii) (A) if the Leverage Ratio is greater than 3.25:1.00 as of the last day of such incurrence or issuance toward Fiscal Year, prepay the prepayment outstanding principal amount of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect result of (to the relevant Reinvestment Event shall be applied toward the prepayment extent positive) (1) 75% of the Term Loans as set forth in Section 4.2(d).
Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year minus (2) Notwithstanding the foregoing, to aggregate principal amount of all payments made by the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment Borrowers pursuant to Section 4.2(b)(1) (each 5.2.3 for such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period Fiscal Year or, at the option of the BorrowerBorrowers, on or prior to the ECF Payment Date, so long as, to the extent any deduction is made pursuant to the foregoing clause (2) after such Fiscal Year and prior to when such Excess Cash Flow Application Dateprepayment is due, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall not be made on a date (an “deducted with respect to the Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) prepayment for the fiscal year succeeding Fiscal Year, or (B) if the Leverage Ratio is less than or equal to 3.25:1.00 as of the Borrower with respect to which last day of such prepayment is made are required to be delivered to Fiscal Year, prepay the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment outstanding principal amount of the Term Loans in accordance an amount equal to the result of (to the extent positive) (1) 50% of the Excess Cash Flow of the Parent and its Subsidiaries for such Fiscal Year minus (2) the aggregate principal amount of all payments made by the Borrowers pursuant to Section 5.2.3 for such Fiscal Year or, at the option of the Borrowers, prior to the ECF Payment Date, so long as, to the extent any deduction is made pursuant to the foregoing clause (2) after such Fiscal Year and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with Section 4.8 respect to the Excess Cash Flow prepayment for the succeeding Fiscal Year (the “Excess Cash Flow Payment Amount”); provided, that if the Payment Conditions are not satisfied at the time such payment is due, Borrowers shall pay such portion of the Excess Cash Flow Payment Amount permitted to be paid on such date, if any, and shall on the first day of each month thereafter, pay such portion of the unpaid amount of the Excess Cash Flow Payment Amount permitted to be paid such that the Payment Conditions are satisfied until such time as the entire Excess Cash Flow Payment Amount has been paid in full;
(b) Concurrently with any disposition of assets of an Obligor in excess of $750,000 in any Fiscal Year (excluding the sale or other transfer of Inventory and Accounts in the Ordinary Course of Business), Borrowers shall prepay the Term Loan in an amount equal to the Net Proceeds of such disposition; provided that so long as no Event of Default shall have occurred and be continuing, the recipient of any such Net Proceeds may reinvest such Net Proceeds within (i) 180 days of such disposition in replacement assets performing the same or similar functions; or (ii) within 270 days of such disposition if Borrowers have entered into a binding commitment to make such reinvestment in replacement assets performing the same or similar functions within the 180 day period referred to in clause (i) provided that, (A) to the extent such disposition relates to ABL Priority Collateral, such ABL Priority Collateral Proceeds shall be applied (i) first, to Base Rate Loans and, Revolver Debt until paid in full and (ii) second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 until paid in full and (B) to the extent such disposition relates to Term Priority Collateral, such Term Priority Collateral Proceeds shall be accompanied by accrued interest applied (i) first, to the date Term Loan until paid in full and (ii) second, to the Revolver Debt until paid in full;
(c) Concurrently with the receipt by any Obligor of any proceeds of any insurance or condemnation award in excess of $2,500,000, the recipient of such prepayment on proceeds shall prepay the Term Loan in an amount prepaid.equal to such proceeds; provided that so long as no Event of Default shall have occurred and be continuing, the recipient of any such proceeds may reinvest such proceeds (only to the extent that the aggregate amount of such proceeds from any single casualty or condemnation award do not exceed $7,000,000) within (i) 180 days of such disposition in replacement assets performing the same or similar functions or (ii) within 270 days of such disposition if Borrowers have entered into a binding commitment to make such reinvestment in replacement assets performing the same or similar functions within the 180 day period referred to in clause (i); provided that, (A) to the extent such proceeds of insurance or condemnation award relates to ABL Priority Collateral, such ABL Priority Collateral Proceeds shall be applied (i) first, to Revolver Debt until paid in full and (ii) second, to the Term Loans until paid in full and (B) to the extent such proceeds of insurance or condemnation award relates to Term Priority Collateral, such Term Priority Collateral Proceeds shall be applied (i) first, to the Term Loan until paid in full and (ii) second, to the Revolver Debt until paid in full;
(d) Concurrently with any issuance of Equity Interests (including issuances of Equity Interests constituting Equity Cure Contributions, but excluding issuances of Equity Interests constituting “Equity Cure Contributions” (as defined in the Revolver Loan Agreement)) by any Obligor, Borrowers shall prepay the Term Loan in an amount equal to the net proceeds of such issuance;
(e) The TotalAdditional Term B Commitment Concurrently with any issuance of Debt (and other than Debt permitted by Section 9.2.1) by any Obligor, Borrowers shall prepay the Term Commitments Loan in an amount equal to the net proceeds of each Lendersuch issuance;
(f) [reserved];
(g) Concurrently with the receipt of any Extraordinary Receipts by any Obligor, Borrowers shall terminate prepay Term Loans in its entirety at 5:00 p.m.an amount equal to such proceeds; provided that to the extent such proceeds relates to ABL Priority Collateral, New York City timesuch ABL Priority Collateral Proceeds shall be applied (i) first, on to Revolver Debt until paid in full and (ii) second, to the Closingupon funding on the Amendment No.1Term Loans until paid in full.
Appears in 2 contracts
Sources: Financing Agreement (Select Interior Concepts, Inc.), Financing Agreement (Select Interior Concepts, Inc.)
Mandatory Prepayments. (a) 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 issued by any Group Member after the Closing Date (other than Excluded Indebtedness), of its Restricted Subsidiaries an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member 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, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that, that notwithstanding the foregoing, on each the date (the “Trigger Date”) that is six months after the applicable Reinvestment Prepayment Date, the Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event not actually expended by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionTrigger Date.
(c) The Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Parent commencing with the fiscal year ending on or nearest to December 31, 2007, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of an amount equal to (i) the Excess Cash Flow for the related Percentage of such Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such Excess Cash Flow Payment Period or, at fiscal year to the option extent accompanied by permanent optional reductions of the BorrowerRevolving Commitments and all optional prepayments of the Term Loans during such fiscal year, on or prior in each case other than to the extent any such Excess Cash Flow Application Dateprepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days Business Days after the date on which the financial statements of the Parent referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied applied, first, to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full and, second, to the prepayment of the Revolving Loans in accordance with Section 2.18(c) and, to the extent of any excess, to provide cover for L/C Obligations as specified in Section 8. Any such mandatory prepayment of the Revolving Loans pursuant to Section 2.12 shall not result in a mandatory reduction of the Revolving Commitments. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional 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 B Commitment Loans (and which, for avoidance of doubt, includes any New Term Loans) (such amounts, the “Prepayment Amount”), at any time when Term Commitments Loans remain outstanding, the Borrower will, in lieu of each Lenderapplying such amount to the prepayment of Term Loans as provided in paragraph (d) shall terminate in its entirety at 5:00 p.m., New York City timeabove, on the Closingupon funding 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 J (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay on the Amendment No.1date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted (it being understood that any Lender’s failure to object prior to the relevant Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of such Prepayment Option Notice and the amount to be prepaid in respect of Term Loans held by such Lender) prepayment as described above and (ii) the Borrower shall offer to pay to such accepting Term Lenders an amount equal to the portion of the aggregate Prepayment Amount not accepted by the relevant Term Lenders, and (to the extent accepted by any or all of such accepting Term Lenders) such amount shall be applied to the prepayment of the Term Loans held by such Term Lenders ratably based upon the aggregate principal amount of such Loans; provided that, following such offer and application, any amount remaining unapplied shall be returned to the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Yankee Finance, Inc.), Credit Agreement (Yankee Holding Corp.)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtednessany Indebtedness permitted to be incurred by any such Person in accordance with Section 6.1), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in clause (f) of this Section 4.2(d)2.6.
(b) Subject to clause (d) of this Section 2.6, for any Excess Cash Flow Period, an amount equal to the excess of (i) ECF Percentage of such Excess Cash Flow over (ii) to the extent not funded with the proceeds of Indebtedness constituting “long term indebtedness” under GAAP (other than Indebtedness in respect of any revolving credit facility), the aggregate amount of (1) If all Purchases by the Borrower (determined by the actual cash purchase price paid by the Borrower for such Purchase and not the par value of the Loans purchased by the Borrower) pursuant to a Dutch Auction permitted hereunder and (2) voluntary prepayments of Loans made by the Borrower during the Specified Period for such Excess Cash Flow Period, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Loans as set forth in clause (f) of this Section 2.6. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of the Borrower referred to in Section 5.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders.
(c) Subject to clause (d) of this Section 2.6, if, on any date date, the Borrower or any Group Member Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of $5,000,000 in any fiscal year, then, unless a Reinvestment Notice no Default or Event of Default has occurred and is continuing and the Borrower has determined in good faith that such Net Cash Proceeds shall be delivered reinvested in respect thereofits business (a “Reinvestment Event”), an amount equal to 100% of then such Net Cash Proceeds shall be applied on within 10 Business Days of such date toward to prepay (A) outstanding Loans in accordance with this Section 2.6 and (B) at the prepayment of Borrower’s option, outstanding Indebtedness that is secured by the Term Loans Collateral on a pari passu basis incurred (x) as set forth in Permitted First Priority Refinancing Debt or (y) pursuant to Section 4.2(d6.1(b)(vi) (collectively, “Other Applicable Indebtedness”); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event any Asset Sale or Recovery Event, shall be applied toward to prepay the prepayment of the Term outstanding Loans as set forth in clause (f) of this Section 4.2(d2.6. Any such Net Cash Proceeds may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale or Recovery Event is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds applied to prepay outstanding Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their Pro Rata Share (determined on the basis of the aggregate outstanding principal amount of Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds, the declined amount of such Net Cash Proceeds shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding).
(2d) Notwithstanding anything to the foregoingcontrary in this Agreement (including clauses (b) and (c) above), to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise or Excess Cash Flow attributable to mandatory prepayment pursuant to Section 4.2(b)(1) Foreign Subsidiaries (each such Asset Sale and Recovery Event, a “Specified Asset Sale”or foreign branches of Domestic Subsidiaries) are prohibited or delayed by applicable local Requirements of Law law from being repatriated to the jurisdiction of organization United States (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the Borrowerrelevant directors) or such repatriation would reasonably be expected to result in material adverse Tax consequences (as reasonably determined by the Borrower in consultation with the Administrative Agent), the calculation portion of such Net Cash Proceeds shall or Excess Cash Flow so affected will not be reduced required to be applied to repay Loans at the times set forth in this Section 2.6 but may be retained by the amount applicable Foreign Subsidiary or branch so prohibited long, but only so long, as such applicable local law will not permit repatriation to the United States or delayed; providedsuch material adverse Tax consequences would continue to result from such repatriation (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences), that and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the such applicable local Requirements of Lawlaw or material adverse Tax consequences would no longer result from such repatriation, the Group Members shall such repatriation will be treated as having received immediately effected and such repatriated Net Cash Proceeds equal or Excess Cash Flow will be promptly (and in any event not later than 10 Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the amount repayment of such reductionthe Loans pursuant to this Section 2.6.
(ce) The Borrower shall, on shall deliver to the Administrative Agent notice of each Excess Cash Flow Application Date, apply prepayment required under this Section 2.6 not less than 10 Business Days prior to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each date such prepayment shall be made on (each such date, a date (an “Excess Cash Flow Application Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date and (ii) the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent will promptly notify each applicable Lender of such notice and of each such Lender’s Pro Rata Share of the prepayment. Each such Lender may reject all of its Pro Rata Share of the prepayment (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than ten 5:00 P.M., New York City time, one (101) days Business Day after the date on which of such Lender’s receipt of such notice from the financial statements referred Administrative Agent. Each Rejection Notice from a given Lender shall specify the principal amount of the prepayment to in 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 Borrower. The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 7.1(a) for the fiscal year 2.6, a certificate signed by a Responsible Officer of the Borrower with respect to which setting forth in reasonable detail the calculation of the amount of such prepayment is made are required to be delivered to the Lendersprepayment.
(df) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.6 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, 2.12(b). The application of any prepayment of Loans pursuant to Base Rate Loans and, second, to Eurodollar Loansthis Section 2.6 shall be made on a pro rata basis regardless of Type. Each prepayment of the Term Loans under this Section 4.2 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 2 contracts
Sources: Credit Agreement (Mueller Water Products, Inc.), Term Loan Credit Agreement (Mueller Water Products, Inc.)
Mandatory Prepayments. Without duplication:
(a) If any Capital Stock shall be issued by the Borrower or any of its Subsidiaries (excluding Capital Stock issued to a Loan Party), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(e). Notwithstanding the foregoing, any proceeds from the any public follow-on offering of the Borrower’s Capital Stock or any proceeds from the exercise of stock options or warrants shall not be required to be applied to prepay the Obligations pursuant to this Section 2.12(a).
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that, that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $500,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) Borrower (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of commencing with the Borrower’s fiscal year ending December 31, 2015), there shall be Excess Cash Flow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option (minus voluntary principal repayments of the BorrowerLoans under the Loan Documents (excluding voluntary repayment of Revolving Loans or Swingline Loans, on or prior except to the extent there is an equivalent permanent reduction in the commitments related thereto), except to the extent such Excess Cash Flow Application Date, repayments are not made with internally generated funds for such fiscal year) toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that such percentage shall be reduced to (i) 25% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 2.50 to 1.00 but equal to or greater than 1.00 to 1.00 and (ii) 0% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 1.00 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than ten the earliest of five Business Days following (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders, (ii) the date such financial statements are actually delivered. Notwithstanding the foregoing, to the extent applicable, any proceeds from any public follow-on offering of EDH’s Capital Stock or any proceeds from the exercise of stock options or warrants shall not be considered in the calculation of Excess Cash Flow or any component thereof for purposes of this Section 2.12(d).
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans in reverse order of maturity and in accordance with Sections 2.3 and 2.18(b) (provided that any Term Lender may decline any such prepayment (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed first, to the prepayment, on a pro rata basis, of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts; second, to the extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans in accordance with Section 4.8 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); and firstthird, to Base Rate the extent of any residual, if no Term Loans and, secondor Revolving Loans remain outstanding, to Eurodollar Loansthe replacement of outstanding Letters of Credit and/or the deposit of an amount in cash (in an amount not to exceed 105% of the then existing L/C Exposure) in a Cash Collateral account established with the Administrative Agent for the benefit of the Issuing Lender and the L/C Lenders on terms and conditions satisfactory to the Issuing Lender. Each prepayment of the Term Loans under this Section 4.2 2.12 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans, in the event the Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of such prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile not later than three (3) Business Days prior to the Mandatory Prepayment Date.
(ef) The TotalAdditional Term B Commitment Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction and (ii) to the extent practicable, at least ten days prior written notice of such prepayment or reduction (and the Term Commitments Administrative Agent shall promptly provide the same to each Lender). Each notice of prepayment shall specify the prepayment or reduction date, the Type of each LenderLoan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.
(g) No prepayment fee shall terminate be payable in its entirety respect of any mandatory prepayments made pursuant to this Section 2.12.
(h) Amounts to be applied pursuant to this Section 2.12 to the prepayment of Term Loans and Revolving Loans shall be applied, as applicable, first to reduce outstanding ABR Loans. Any amounts remaining after each such application shall be applied to prepay Eurodollar Loans. Notwithstanding the foregoing, if the amount of any prepayment of Loans required under this Section 2.12 shall be in excess of the amount of the ABR Loans at 5:00 p.m.the time outstanding (an “Excess Amount”), New York City timeonly the portion of the amount of such prepayment as is equal to the amount of such outstanding ABR Loans shall be immediately prepaid and, at the election of Borrower, the Excess Amount shall be either (A) deposited in an escrow account on terms reasonably satisfactory to the Administrative Agent and applied to the prepayment of Eurodollar Loans on the Closingupon funding last day of the then next-expiring Interest Period for Eurodollar Loans; provided that (i) interest in respect of such Excess Amount shall continue to accrue thereon at the rate provided hereunder for the Loans which such Excess Amount is intended to repay until such Excess Amount shall have been used in full to repay such Loans and (ii) at any time while an Event of Default has occurred and is continuing, the Administrative Agent may, and upon written direction from the Required Lenders shall, apply any or all proceeds then on deposit to the Amendment No.1payment of such Loans in an amount equal to such Excess Amount or (B) prepaid immediately, together with any breakage costs owing to the Lenders pursuant to Section 2.21.
Appears in 1 contract
Mandatory Prepayments. (a) If Except for Indebtedness expressly permitted under Section 6.2, if any Indebtedness described in clause (a) or (c) of the definition of “Indebtedness” shall be issued or incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)Covered Party, then, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1b) If on any date any Group Member Covered Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless (i) no Event of Default has occurred and is continuing and (ii) a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoingLoans. In addition, 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 as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionLoans.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply If at any time the ECF Percentage aggregate outstanding principal amount of the excessLoans exceeds the Commitment, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at Borrower will immediately prepay or repay the option Loans in an amount necessary to cause the outstanding principal amount of the Borrower, on or prior such Excess Cash Flow Application Date, toward Loans not to exceed the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the LendersCommitment.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the Each such prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid and all amounts due and owing in respect thereof under Section 2.12.
(e) Any prepayment or repayment of COF Loans on any date other than the regularly scheduled payments of principal thereof on the scheduled dates due hereunder or on the Maturity Date shall also be accompanied by a fee equal to the “Yield Maintenance Fee” in an amount computed as follows: The TotalAdditional Term B Commitment current cost of funds, specifically the bond equivalent yield for United States Treasury securities (bills on a discounted basis shall be converted to a bond equivalent yield) with a maturity date closest to the remaining term of such COF Loans, shall be subtracted from the COF Rate, or default rate if applicable. If the result is zero or a negative number, there shall be no Yield Maintenance Fee due and payable. If the result is a positive number, then the resulting percentage shall be multiplied by the scheduled outstanding principal balance for each remaining monthly period of this note. Each resulting amount shall be divided by 360 and multiplied by the number of days in the monthly period. Said amounts shall be reduced to present values calculated by using the above reference current costs of funds divided by 12 and the Term Commitments COF Loan’s remaining term in months. The resulting sum of each Lender) present values shall terminate in its entirety at 5:00 p.m.be the yield maintenance fee due to the Lender upon prepayment of the principal of the COF Loans plus any accrued interest due as of the prepayment date. Unless the Lender expressly agrees otherwise, New York City time, on partial payments will not affect the Closingupon funding on the Amendment No.1payment schedule required hereunder.
Appears in 1 contract
Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2, other than Excluded Indebtednessparagraph (l) thereof), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,500,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(d2.11(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2015, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply prepay an aggregate amount of Term Loans in an amount equal to (A) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus fiscal year covered by the financial statements for such fiscal year (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans to be applied as set forth in Section 4.2(d2.11(d) below), minus (B) solely to the extent not funded with the proceeds of Indebtedness, the aggregate amount of all optional prepayments of the Term Loans pursuant to Section 2.10 made during such fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.17(b). The application of any prepayment pursuant to Section 2.11 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding any other provisions of Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term B Commitment Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Commitments Loans pursuant to Section 2.11; provided, that no such prepayment of each Lenderthe Term Loans pursuant to Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary). For the purposes of this Section 2.11(e) only, the term Domestic Subsidiary shall include a Foreign Subsidiary Holdco.
(f) Notwithstanding anything to the contrary contained in this Section 2.11, if any Term Lender shall notify the Administrative Agent (i) on the date of such prepayment, with respect to any prepayment under Section 2.11(a) or (b) or (ii) at least one Business Day prior to the date of a prepayment under Section 2.11(c) that it wishes to decline its share of such prepayment, such share (the “Declined Prepayment Amount”) shall terminate be offered in its entirety at 5:00 p.m.accordance with the mandatory prepayment provisions of the Second Lien Credit Agreement (or the applicable corresponding provisions of any document governing any Permitted Refinancing Indebtedness with respect thereto) and, New York City timeif declined by the lenders thereunder, on may be retained by the Closingupon funding on the Amendment No.1Borrower.
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Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded Indebtednessany Credit Agreement Refinancing Facilities or Permitted External Refinancing Debt)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Subject to Section 2.12(e), if on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless that does not constitute a Reinvestment Notice shall be delivered Event or an MF Required Disposition, which, together with the Net Cash Proceeds received from all other Asset Sales or Recovery Events in respect thereofsuch fiscal year exceed $40,000,000, then, an amount equal to 100% of such Net Cash Proceeds in excess of $40,000,000, and an amount equal to all Net Cash Proceeds received thereafter in such fiscal year, shall be applied on such date the fifth Business Day after receipt toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shallSubject to Section 2.12(e), prepayment will be made on the 2024 2025 Refinancing Term B Loans on or prior to 105 days following the end of each Excess Cash Flow Application Date, apply the ECF Percentage fiscal year of the excessParent Borrower, if any, of commencing with the first full fiscal year ending after the Amendment No. 3 Effective Date in an amount equal to (i) the ECF Percentage, multiplied by (ii) the Excess Cash Flow for such fiscal year, less (iii) to the related extent the Parent Borrower (in its sole discretion) elects not to have such amounts reduce Excess Cash Flow Payment Period minus Flow, without duplication, any amounts described in clauses (iib)(i) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option through (b)(x) of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment definition of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application DateFlow”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans2.18(b). Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding any provision to the contrary in this Agreement, the following amounts shall be excluded from the calculation of the amount of Net Cash Proceeds from any Asset Sale or Recovery Event and the amount of Excess Cash Flow, as applicable:
(i) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary, Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary, as applicable, the distribution of which by a Foreign Subsidiary to the Parent Borrower or a Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary is prohibited or delayed by applicable local law. Any amount that is excluded from the calculation of Net Cash Proceeds or Excess Cash Flow in accordance with this Section 2.12(e)(i) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) or 2.12(c), as applicable, and may be deducted from any amounts otherwise due under Section 2.12(b) or 2.12(c), as applicable, so long, but only so long, as the applicable local law will not permit a distribution of those funds by the Foreign Subsidiary (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable law to eliminate such limitations). Once the distribution of any of such affected Net Cash Proceeds or Excess Cash Flow, as applicable, is permitted under the applicable local law, the Parent Borrower shall prepay the Term Loans (not later than five (5) Business Days after such distribution is permitted) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Event has occurred in respect of such Net Cash Proceeds or Excess Cash Flow, as applicable, or to the extent Section 2.12(e)(ii) precludes such prepayment; and
(ii) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary, Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary, in each case, to the extent that the Parent Borrower has determined in its reasonable judgment that the distribution of any of or all such items to the Parent Borrower or any Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary would have any adverse tax consequence (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable law to avoid any such adverse tax consequence). Any amount that is excluded from the calculation of Net Cash Proceeds or Excess Cash Flow in accordance with this paragraph 2.12(e)(ii) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) or 2.12(c), as applicable, and may be deducted from any amounts otherwise due under Section 2.12(b) or 2.12(c), as applicable. Once the Parent Borrower determines in its reasonable judgment that a distribution of any of such affected Net Cash Proceeds or Excess Cash Flow, as applicable, would cease to result in adverse tax consequences, the Parent Borrower shall prepay the Term Loans (not later than five (5) Business Days after such determination) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Event has occurred in respect of such Net Cash Proceeds or Excess Cash Flow, as applicable, or to the extent Section 2.12(e)(i) precludes such prepayment. Notwithstanding anything to the contrary in this Section 2.12, in no event shall any Group Member be required to repatriate cash of Non-Domestic Subsidiaries to the United States.
(f) If, on any date, (i) the aggregate Dollar Equivalents of the sum of the aggregate outstanding principal amounts of Foreign Currency Loans and any outstanding L/C Obligations denominated in any L/C Foreign Currency exceeds an amount equal to 105% of the Foreign Currency Sublimit, the Borrowers shall, without notice or demand, immediately repay such of the outstanding Foreign Currency Loans and cash collateralize any outstanding Letters of Credit denominated in any L/C Foreign Currency in an aggregate principal amount such that, after giving effect thereto, the aggregate Dollar Equivalents of the outstanding principal amounts of Foreign Currency Loans does not exceed the Foreign Currency Sublimit or (ii) the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments, and the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments for two consecutive Business Days thereafter, then on such second Business Day thereafter, the Borrowers shall, without notice or demand, immediately repay such of the outstanding Revolving Extensions of Credit and cash collateralize any outstanding Letters of Credit in an aggregate principal amount such that, after giving effect thereto, the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) do not exceed the Total Revolving Commitments.
(g) Each 2024 2025 Refinancing Term B Commitment Lender may reject all (but not less than all) of its applicable share of any mandatory prepayment (such declined amounts, the “Mandatory Prepayment Declined Proceeds”) of 2024 2025 Refinancing Term B Loans required to be made pursuant to this Section 2.12 by providing written notice (each, a “Mandatory Prepayment Rejection Notice”) to the Administrative Agent and the Term Commitments of each Lender) shall terminate in its entirety at Parent Borrower not later than 5:00 p.m., New York City time, one (1) Business Day after the date of such 2024 2025 Refinancing Term B Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a 2024 2025 Refinancing Term B Lender fails to deliver a Mandatory Prepayment Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of the total amount of such mandatory prepayment of 2024 2025 Refinancing Term B Loans. Any Mandatory Prepayment Declined Proceeds shall be retained by the Parent Borrower.
(h) If the Escrow Release Date has not occurred on or prior to the date that is twelve (12) months after the Amendment No. 3 Effective Date, the Parent Borrower shall, notwithstanding anything in this Agreement or any other Loan Document to the contrary, immediately repay an amount, which shall constitute payment in full of such 2024 Term B Loans at maturity, equal to (x) the amount that the 2024 Term B Lenders funded into the Escrow Account plus (y) all interest and fees on the Closingupon funding on 2024 Term B Loans accrued and unpaid as of the Amendment No.1date of the repayment. All amounts in the Escrow Account shall be applied toward prepayment of the 2024 Term B Loans described in this clause (h) and any remaining amounts due and payable with respect to the 2024 Term B Loans after the application of amounts in the Escrow Account shall be paid by the Parent Borrower.
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Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Borrower or issued any of its Restricted Subsidiaries (excluding any Indebtedness permitted by any Group Member after the Closing Date Section 7.2 (other than Excluded First Lien Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within one Business Day of the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.6(d).
(1b) If on any date the Borrower or any Group Member of its Restricted Subsidiaries shall receive have received Net Cash Proceeds of at least $5,500,000 in the aggregate from any Asset Sale Sales or Recovery Event Events then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on within one Business Day of such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.6(d); provided thatprovided, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.6(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2012, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply prepay an aggregate amount of Loans in an amount equal to (A) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus fiscal year covered by the financial statements for such fiscal year (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans to be applied as set forth in Section 4.2(d2.6(d) below), minus (B) solely to the extent not funded with the proceeds of Indebtedness, (w) the aggregate amount of all optional prepayments of the Loans pursuant to Section 2.5 or Section 2.19 made during such fiscal year (provided that with respect to any prepayment pursuant to Section 2.19, the aggregate amount of such prepayment for purposes of this clause shall be the amount of the Borrower’s cash payment in respect of such prepayment) to the extent not otherwise deducted previously pursuant to this clause, (x) the aggregate amount of all optional prepayments of the First Lien Term Loans pursuant to Section 2.10 of the First Lien Credit Agreement (as in effect on the date hereof) or Section 2.26 of the First Lien Credit Agreement (as in effect on the date hereof) made during such fiscal year (provided that with respect to any prepayment pursuant to Section 2.26 of the First Lien Credit Agreement, the aggregate amount of such prepayment for purposes of this clause shall be the amount of the Borrower’s cash payment in respect of such prepayment) to the extent not otherwise deducted previously pursuant to this clause, (y) with respect to the Excess Cash Flow Period ending on December 31, 2012, the aggregate amount of all optional repayments of First Lien Revolving Loans (not to exceed the amount of First Lien Revolving Loans drawn as of the Closing Date, and only to the extent not reborrowed prior to the end of such Excess Cash Flow Period) pursuant to Section 2.10 of the First Lien Credit Agreement (as in effect on the date hereof) made during such fiscal year to the extent not otherwise deducted previously pursuant to this clause (provided that in no event shall the deduction pursuant to this clause (y) exceed the lesser of (i) $12,000,000 and (ii) an amount equal to 25% of Excess Cash Flow calculated without giving effect to this clause (y)) and (z) with respect to the Excess Cash Flow Period ending on December 31, 2013 and each Excess Cash Flow Period ending thereafter, the aggregate amount of all optional repayments of First Lien Revolving Loans pursuant to Section 2.10 of the First Lien Credit Agreement (as in effect on the date hereof) made during such fiscal year that are accompanied by an equivalent permanent reduction in the First Lien Revolving Commitments to the extent not otherwise deducted previously pursuant to this clause. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made The application of any prepayment pursuant to this Section 4.2 2.6 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment Notwithstanding any other provisions of Section 2.6, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Loans at the times provided in this Section 2.6 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the Term Commitments prepayment of each Lenderthe Loans pursuant to Section 2.6 (provided that no such prepayment of the Loans pursuant to Section 2.6 shall be required in the case of any such Net Cash Proceeds or Excess Cash Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).
(f) Notwithstanding anything to the contrary contained in this Section 2.6, if any Lender shall terminate in its entirety at 5:00 p.m., New York City time, notify the Administrative Agent (i) on the Closingupon funding date of such prepayment, with respect to any prepayment under Section 2.6(a) or (b) or (ii) at least one Business Day prior to the date of a prepayment under Section 2.6(c) that it wishes to decline its share of such prepayment, such share (the “Declined Prepayment Amount”) may be retained by the Borrower.
(g) Notwithstanding anything to the contrary contained in this Section 2.6 any prepayments required by this Section 2.6 shall be reduced on a dollar-for-dollar basis by any mandatory prepayments of the First Lien Term Loans made by the Borrower under Section 2.11 of the First Lien Credit Agreement (as in effect on the Amendment No.1date hereof).
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Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Company or issued by any Group Member after the Closing Date of its Restricted Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness permitted under Section 7.02), then not later than the next Business Day following such incurrence, the Loans shall be prepaid by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)incurrence.
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any Group Member shall of its Restricted Subsidiaries receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, not later than the fifth Business Day following the receipt by the Company or such Restricted Subsidiary of such Net Cash Proceeds, on such date, the Loans shall be prepaid by an amount equal to 100% the amount of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Proceeds; provided that, that (i) 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 shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
and (2) Notwithstanding the foregoing, to the extent that (and for so long asii) any such prepayment shall only be required with the aggregate amount of or all of the Net Cash Proceeds of from any Asset Sale or any Recovery Event by received in any fiscal year of the Company in excess of $10,000,000. The provisions of this Section do not constitute a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated consent to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation consummation of any such affected Net Cash Proceeds is Disposition not permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionby Section 7.05.
(c) The Borrower shallUnless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Company commencing with the fiscal year ending January 31, 2019, there shall be Excess Cash Flow (provided, however, that with respect to any fiscal year in which the Spin-Off occurs, Excess Cash Flow shall only be calculated in respect of the portion of such fiscal year subsequent to the Spin-Off), then, on each the relevant Excess Cash Flow Application Date, apply the Loans shall be prepaid by an amount equal to (x) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option minus (y) voluntary payments of Term Loans or Revolving Credit Loans (accompanied by an equal permanent reduction of the Borrower, on Revolving Credit Commitments) under Section 2.09 during such fiscal year but only to the extent that such prepayments do not (i) occur pursuant to a refinancing of all or prior any portion of such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)or Revolving Credit Loans or (ii) utilize the Available Amount. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days five Business Days after the earlier of the date on which the financial statements of the Company referred to in Section 7.1(a) 6.01(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, (i) are required to be delivered to the LendersLenders and (ii) are actually delivered.
(d) Amounts In the event of any termination of all the Revolving Credit Commitments, each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and replace or cause to be canceled (or Cash Collateralize or make other arrangements reasonably satisfactory to the Administrative Agent and each applicable Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitment, then the Borrowers shall, on the date of such reduction or at such other time, repay or prepay Revolving Credit Loans 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.
(e) Notwithstanding any other provisions of this Section 2.10, (i) to the extent that any or all of the Net Cash Proceeds of any Asset Sale or Recovery Event by a Foreign Subsidiary or Excess Cash Flow estimated in good faith by the Company to be attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary duties of directors and managers of Foreign Subsidiaries) from being repatriated to the United States or passed on to or used for the benefit of the Company, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in connection this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as applicable local law delays or will not permit repatriation thereof to the United States (the Company hereby agreeing to cause the applicable Foreign Subsidiary to use commercially reasonable efforts in compliance with applicable law to effect such repatriation), and once such repatriation to the United States of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under applicable local law, such repatriation to the United States will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days, or such later date as is acceptable to the Administrative Agent, after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Loans to the extent otherwise required under this Section 2.10, (ii) to the extent that the Company has determined in good faith that repatriation to the United States of any of or all the Net Cash Proceeds of any Disposition by a Foreign Subsidiary or Excess Cash Flow estimated in good faith by the Company to be attributable to Foreign Subsidiaries or passing on to or use thereof for the benefit of the Company could reasonably be expected to cause significant adverse tax consequences to the Company or any of its Restricted Subsidiaries, such 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 (ii), on or before the date 180 days from the date on which any such Net Cash Proceeds so retained would otherwise have been required to be applied to prepayments to the extent otherwise required under Section 2.10(b) or any such Excess Cash Flow would have been required to be applied to prepayments pursuant to Section 2.10(c), the Company applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by or was attributable to the Company 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 to the United States (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) and (iii) to the extent that any or all of the Net Cash Proceeds of any Asset Sale or Recovery Event or Excess Cash Flow estimated in good faith by the Company to be attributable to non-Wholly Owned Restricted Subsidiaries are prohibited or delayed by organizational document restrictions to the extent not created in contemplation of such prepayments from being passed on to or used for the benefit of the Company, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in this Section 2.10 but may be retained by the applicable non-Wholly Owned Restricted Subsidiary so long, but only so long, as the organizational documents of such non-Wholly Owned Restricted Subsidiary delays or will not permit funding such prepayment (the Company hereby agreeing to cause the applicable non-Wholly Owned Restricted Subsidiary to use commercially reasonable efforts in compliance with its organizational documents to effect such prepayment), and once such prepayment of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the non-Wholly Owned Restricted Subsidiaries organizational documents, such prepayment of the Loans to the extent otherwise required under this Section 2.10 will be promptly effected (and in any event not later than two Business Days, or such later date as is acceptable to the Administrative Agent, after such organizational restrictions are removed). For the avoidance of doubt, but without limiting the Company’s obligations under this Section 2.10, in no circumstance shall this Section 2.10 require any Foreign Subsidiary to make any dividend of or otherwise repatriate for the benefit of the Company any portion of any Net Cash Proceeds received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(f) All prepayments made pursuant to this Section 4.2 2.10 shall be applied subject to the prepayment of the Term Loans in accordance with Section 4.8 2.19, but shall otherwise be without premium or penalty, and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest on the principal amount to be repaid to but excluding the date of such prepayment on the amount prepaidpayment.
(eg) Each prepayment of Loans pursuant to this Section 2.10 shall be applied first, pro rata to the installments of Term Loans which are scheduled to mature in the 24-month period immediately following such prepayment, second, to remaining installments of Term Loans pro rata according to the outstanding principal amounts thereof, third, if no Term Loans are outstanding, to prepay outstanding Revolving Credit Loans to the full extent thereof, and fourth, if no Term Loans or Revolving Credit Loans are outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to the aggregate undrawn face amount of all such Letters of Credit) (it being understood that any such repayment or Cash Collateralization shall not permanently reduce Revolving Credit Commitments). Notwithstanding anything in this Section 2.10(g), any Term Loan Lender may elect not to accept its pro rata portion of any amount prepaid under this Section 2.10 pursuant to procedures reasonably satisfactory to the Administrative Agent (each such Term Loan Lender, a “Declining Lender”), and the Company or applicable Subsidiary Borrower shall retain for its own account such amount (the “Declined Amount”) declined by a Declining Lender.
(h) The TotalAdditional Term B Commitment Company shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.10, (1) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment and (2) at least one Business Day prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the Term Commitments principal amount of each LenderLoan (or portion thereof) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1to be prepaid.
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Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of the receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, Date the Term Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event Event, as set forth in Section 2.12(d).
(c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2005, there shall be applied Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the Excess Cash Flow Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1 (a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments and made pursuant to this Section 4.2 2.12 above shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Mandatory Prepayments. i. Co-Borrowers shall prepay the Term Loans as follows (aeach, a “Mandatory Prepayment”):
(A) If any Indebtedness [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 cause the outstanding principal amount of the Loans to equal the Target Debt Balance for such Quarterly Payment Date, which amount shall be incurred or issued in no event exceed 100% of Excess Cash Flow remaining on deposit in the Revenue Account as of such Quarterly Payment Date (the “Target Debt Balance Excess Cash Flow Sweep”);
(C) not later than ten Banking Days following the receipt by any Group Member after Borrower Party of the Closing Date (proceeds of any conveyance, sale, lease, transfer or other disposition of assets or property other than Excluded Indebtedness)pursuant to Section 6.4(a) through (g) (each, a “Disposition”) exceeding $2,000,000, in the aggregate, the Co-Borrowers shall prepay the Loans 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 Net Cash Proceeds thereof shall be applied on in excess of $2,000,000 applicable to such Disposition; provided that, if the date Co-Borrowers notify the Administrative Agent in writing of their intention to reinvest such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from in assets necessary or useful for the business of the Project (excluding, for the avoidance of doubt, assets that would be reflected as “current assets” on the balance sheet, which will be pledged as Collateral hereunder) pursuant to a transaction not prohibited under this Agreement, then the Co-Borrowers shall not be required to make such prepayment to the extent that such Net Cash Proceeds are so reinvested within 12 months following receipt thereof; provided, further that, to the extent such Net Cash Proceeds have not been so reinvested prior to the expiration of the foregoing 12-month period, the Co-Borrowers shall prepay the Loans upon the expiration of such period in an amount equal to such Net Cash Proceeds; provided that such prepayment shall include the applicable Call Premium;
(D) within ten Banking Days of receipt thereof by any Asset Sale or Recovery Event thenBorrower Party, unless a Reinvestment Notice the Co-Borrowers shall be delivered prepay the Loans then outstanding (together with accrued and unpaid interest, accrued and unpaid fees and the applicable Call Premium on the Term Loans) in respect thereof, an amount equal to 100% of the 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 each case actually incurred by the applicable Co-Borrower in connection with such Net Cash Proceeds issuance or incurrence; provided that such prepayment shall be applied include the applicable Call Premium;
(E) within five Banking Days of receipt by any Borrower Party of the proceeds of any Project Document Claim, the Co-Borrowers shall prepay the Loans then outstanding (together with accrued and unpaid interest and accrued and unpaid fees on such date toward the prepayment of the Term Loans as set forth Loans) in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all 100% of the Net Cash Proceeds of such Project Document Claim;
(F) within five Banking Days of receipt by any Asset Sale Borrower Party of any (i) Termination Payment or series of related Termination Payments exceeding $2,000,000, or (ii) any Recovery Event by a Foreign Subsidiary giving rise Project Document Termination Payment, the Co-Borrowers shall prepay the Loans then outstanding (together with accrued and unpaid interest and accrued and unpaid fees on such Loans) in an aggregate amount equal to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization 100% of the Borrower, the calculation of Net Cash Proceeds shall be reduced of such Termination Payment in excess of $2,000,000 or Project Document Termination Payment; provided that, with respect to any Termination Payment (but, for the avoidance of doubt, not any Project Document Termination Payment) exceeding $2,000,000 received by the amount so Co-Borrowers pursuant to and following the termination of 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 prepayment to the extent that such Net Cash Proceeds are actually used within 90 days from receipt of such Termination Payment to replace such terminated Permitted Commodity Hedge Agreement with a replacement agreement substantially similar to or delayedon 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 once if the applicable Co-Borrower has not entered into such repatriation a replacement contract with respect to such Permitted Commodity Hedge Agreement within such 90-day period, the Co-Borrowers shall prepay the Loans then outstanding in an aggregate amount equal to 100% of any such affected the Net Cash Proceeds is permitted under of such Termination Payment in excess of $2,000,000;
(G) as, when and to the extent contemplated by Sections 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 local Requirements provision of Lawthis Agreement or any other Credit Document; and
(H) on the Term Conversion Date, the Group Members Co-Borrowers shall be treated as having received Net Cash Proceeds 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 amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, lesser of (ix) Excess Cash Flow for the related Excess Cash Flow Payment Period minus amount necessary to cause the Debt to Capitalization Ratio on such date to equal 0.75:1.00 and (iiy) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of aggregate amount then remaining on deposit in the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Construction Account. Each such prepayment shall (i) be reduced on a dollar-for-dollar basis by the amounts prepaid pursuant to the corresponding prepayment provisions in the First Lien Credit Agreement and (ii) be applied on a pro rata basis to the outstanding Term Loans, together with accrued and unpaid interest payable in connection with such prepayment, and together with any applicable Call Premium 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 prepayment date. Each such notice shall specify such prepayment date, the aggregate principal amount of the 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 connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), 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 on pursuant to Section 2.1.9(c)(i)(C) or Section 2.1.9(c)(i)(D) by providing written notice (each, a date (an “Excess Cash Flow Application DateRejection Notice”) to the Administrative Agent and the Co-Borrowers no later than ten 5:00 p.m. (10New York City time) days three Banking Days after the date on which of such Lender’s receipt of notice from the financial statements referred to in Section 7.1(a) for Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the fiscal year principal amount of the Borrower with respect to which such mandatory prepayment is made are required of Term Loans to be delivered rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Lenders.
(d) Amounts Administrative Agent within the time frame specified above or such Rejection Notice fails to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to specify the prepayment principal amount of the Term Loans in accordance with Section 4.8 and firstto be rejected, to Base Rate Loans and, second, to Eurodollar any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Each prepayment of the Term Loans under this Section 4.2 Any Declined Proceeds shall be accompanied by accrued interest first offered to the date of such prepayment on applicable Lenders that have not submitted a Rejection Notice, and any remaining Declined Proceeds shall be deposited into the amount prepaidRevenue Account.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Second Lien Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date Within ten (other than Excluded Indebtedness), an amount equal to 100% 10) days of the Net Cash Proceeds thereof shall be applied on the date of such incurrence receipt by Borrower or issuance toward the prepayment any of the Term Loans as set forth in Section 4.2(d).
(1) If on its Subsidiaries of any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thenProceeds, unless a Reinvestment Notice Borrower shall be delivered in respect thereof, apply an amount equal to 100% of such Net Cash Proceeds shall Proceeds, subject to Section 2.20 and other than costs required to be applied on such date toward the paid pursuant to Section 2.17(d), first, to make a mandatory prepayment of the Term Loans as set forth in Section 4.2(d); provided thatLoans, notwithstanding the foregoingand second, 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 make a mandatory prepayment of the Term outstanding Revolving Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoingor, to the extent that at such time no Revolving Loans are outstanding, to cash collateralize any outstanding Letters of Credit, in an amount equal to 100% of such Net Cash Proceeds.
(and for so long asb) If at any of or all time (A) the sum of the Net Cash Proceeds aggregate principal amount of the outstanding Revolving Loans plus the aggregate undrawn amount of all outstanding Letters of Credit plus the aggregate amount of all unreimbursed drawings under Letters of Credit shall exceed (B) the Revolving Credit Commitment Amount, Borrower shall, without demand or notice, prepay Revolving Loans or cash collateralize or replace Letters of Credit in such amount as may be necessary to eliminate such excess, and Borrower shall take such action on the Banking Day on which Borrower learns or is notified of the excess, if Borrower so learns or is so notified prior to 1:00 p.m. (New York City time) on such day, and otherwise on the immediately succeeding Banking Day. Notwithstanding any contrary provision contained herein, the prepayment of any Asset Sale Loan or cash collateralization or replacement of any Recovery Event by a Foreign Subsidiary giving rise to mandatory Letter of Credit hereunder (except for any prepayment pursuant to Section 4.2(b)(12.12 of any Loan that is a Reference Rate Loan) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed shall be accompanied by applicable local Requirements the payment of Law from being repatriated accrued interest on the amount prepaid to the jurisdiction date of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionpayment.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with Any prepayments made pursuant to this Section 4.2 2.13 shall be applied first to Reference Rate Loans to the extent then outstanding and then to Eurodollar Rate Loans to the extent then outstanding, subject to Section 2.17(d). Any prepayments of Term Loans pursuant to this Section 2.13 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 ratably and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments installments of each Lender) shall terminate thereof in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1direct order of maturity and may not be reborrowed.
Appears in 1 contract
Sources: Credit Agreement (Bally Total Fitness Holding Corp)
Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock (other than any Capital Stock issued by the Borrower to finance any Permitted Acquisition) shall be issued by the Borrower or any of its Subsidiaries, an amount equal to 75% (the "Equity Percentage") of the Net Cash Proceeds thereof shall be applied within two Business Days following the date of such issuance toward the prepayment of the Term Loans; provided that the Equity Percentage shall instead equal 50% if the Consolidated Leverage Ratio, determined as at the end of the most recent period of four consecutive fiscal quarters ended prior to the required date of prepayment for which the relevant financial information is available on a pro forma basis as if such issuance had occurred on the first day of such period, is less than 3.50 to 1.0.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Borrower or issued by any Group Member after of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.2 as in effect on the Closing Date (other than Excluded Indebtednessdate of this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1c) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within two Business Days following such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed (x) during the period from the Closing Date to the second anniversary of the Closing Date, $45,000,000, and (y) thereafter, $15,000,000 in any fiscal year of the Borrower (or, in the case of the period commencing on the second anniversary of the Closing Date, the remaining portion of the fiscal year in which such second anniversary falls), 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 as set forth in Section 4.2(d).
(2) Notwithstanding Loans; provided, further, that, notwithstanding the foregoing, the Borrower and its Subsidiaries shall not be required to prepay the Term Loans in accordance with this paragraph (c) except to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any from all Asset Sale Sales which have not been so applied equals or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to exceeds $5,000,000 in the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionaggregate.
(cd) The Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2000, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply 75% (or, if the ECF Percentage Consolidated Leverage Ratio as of the excesslast day of such fiscal year is not greater than 3.50 to 1.0, if any, 50%) of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made The application of any prepayment under a Facility pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2, other than Excluded Indebtednessparagraph (g) thereof), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on within three (3) Business Days of such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any Fiscal Year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending February 4, 2007 there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower Fiscal Year with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.17(b). The application of any prepayment pursuant to Section 2.11 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding the foregoing, if, prior to the Tranche C Funding Date, all Tranche B Term Loans shall have been prepaid, then the amount of any mandatory prepayment pursuant to this Section 2.11 that would have otherwise been applied to prepay the Tranche B Commitment (and Term Loans shall instead be applied to reduce permanently the Tranche C Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1Commitments.
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Mandatory Prepayments. (a) If Not later than one Business Day following the receipt of any Indebtedness Net Cash Proceeds of any Asset Sale (other than any Asset Sales permitted pursuant to Section 6.5) after the Closing Date, the Debtor shall be incurred apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding PTSC Debt.
(b) Upon any Debt Issuance by the Debtor or issued by any Group Member of is subsidiaries after the Closing Date (other than Excluded Indebtednessthat is permitted pursuant to Section 6.1(j), the Debtor shall prepay outstanding PTSC Debt in an aggregate principal amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Debt Issuance.
(1c) If on Not later than one Business Day following the receipt of any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thena Casualty Event, unless a Reinvestment Notice the Debtor shall be delivered in respect thereof, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding PTSC Debt; provided, however, that such proceeds shall not be required to be so applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery from such Casualty Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization used for restoration of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lendersproperty.
(d) Amounts The Debtor shall deliver to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to AIC at the time of each prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans required under this Section 4.2 shall be accompanied 2.6, (i) a certificate signed by accrued interest to a Financial Officer of the date Debtor setting forth in reasonable detail the calculation of the amount of such prepayment on and (ii) to the amount prepaid.
(e) The TotalAdditional Term B Commitment (extent practicable, at least three days' prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the Term Commitments principal amount of each Lenderthe PTSC Debt (or portion thereof) to be prepaid. All prepayments of the PTSC Debt under this Section 2.6 shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1be without premium or penalty.
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Mandatory Prepayments. (a) [Reserved].
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization fiscal year of the Borrower, the calculation of Net Cash Proceeds there shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Excess Cash Proceeds is permitted under the applicable local Requirements of LawFlow, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage difference of the excess, if any, 50% of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at minus the option aggregate amount of any voluntary prepayments of the BorrowerTerm Loans or Incremental Term Loans or to the extent the Revolving Commitment is permanently reduced by an amount equal to such payment, on or prior any voluntary prepayments of the Revolving Loans, made during such Excess Cash Flow Application Date, year toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that such percentage shall be reduced to (i) 25% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 3.00 to 1.00 but equal to or greater than 2.00 to 1.00 and (ii) 0% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 2.00 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than ten the earliest of (10i) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders, and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans in reverse order of maturity and in accordance with Sections 2.3 and 2.18(b) (provided that any Term Lender may decline any such prepayment (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed first, to the prepayment, on a pro rata basis, of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts; second, to the extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans in accordance with Section 4.8 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); and firstthird, to Base Rate the extent of any residual, if no Term Loans and, secondor Revolving Loans remain outstanding, to Eurodollar Loansthe replacement of outstanding Letters of Credit and/or the deposit of an amount in cash (in an amount not to exceed 105% of the then existing L/C Exposure) in a Cash Collateral account established with the Administrative Agent for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender. Each prepayment of the Term Loans under this Section 4.2 2.12 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans, in the event all Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of such prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile not later than three (3) Business Days prior to the Mandatory Prepayment Date.
(ef) The TotalAdditional Term B Commitment Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction and (ii) to the extent practicable, at least five days prior written notice of such prepayment or reduction (and the Term Commitments Administrative Agent shall promptly provide the same to each Lender). Each notice of prepayment shall specify the prepayment or reduction date, the Type of each LenderLoan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.
(g) No prepayment fee shall terminate be payable in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1respect of any mandatory prepayments made pursuant to this Section 2.12.
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Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by the Borrower or any Group Member Restricted Subsidiary after the Closing Acquisition Effective Date (other than Excluded IndebtednessIndebtedness but including, for the avoidance of doubt, any Replacement Facility), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of promptly upon such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(1j) If on any date after the Acquisition Effective Date the Borrower or any Group Member Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on within fifteen (15) Business Days of such date toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(ck) The Borrower shall, on each Excess Cash Flow Application DateDate commencing with the Excess Cash Flow Application Date applicable to the fiscal year of the Borrower ending December 31, 2016, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments voluntary prepayments of the Loans (including the Term Loans but excluding prepayments of the Revolving Facility to the extent there is not an equivalent permanent reduction in commitments thereunder) and Dutch Auction purchases of Term Loans pursuant to Section 11.6(j) to the extent of cash payments by the Borrower in connection therewith, in each case made with Internally Generated Cash during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f); provided that with respect to the fiscal year period ending on December 31, 2016, (i) such calculation of Excess Cash Flow shall be pro rated to reflect the portion of Excess Cash Flow attributable to the period commencing on the Acquisition Effective Date and ending on December 31, 2016 and (ii) notwithstanding any such calculation hereunder, the aggregate amount of any mandatory prepayment under this Section 4.2(c) with respect to the fiscal year ending December 31, 2016 shall not exceed $75,000,000. Each Except as provided below, each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) 100 days after the date on which the financial statements referred to in Section 7.1(a) for end of the fiscal year of the Borrower with respect to for which such prepayment is made are required to be delivered to the Lenders.
(dl) Notwithstanding the foregoing, the Borrower will not be required to prepay the Loans pursuant to clause (b) with respect to any Net Cash Proceeds from any Asset Sale or Recovery Event or pursuant to clause (c) with respect to any Excess Cash Flow for the related Excess Cash Flow Payment Period, in each case attributable to a Foreign Subsidiary to the extent (i) the repatriation of such Net Cash Proceeds or Excess Cash Flow is prohibited by applicable local law from being repatriated so long, but only so long, as the applicable local law will not permit such repatriation (the Borrower hereby agreeing to use commercially reasonably efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation) or (ii) the repatriation of such Net Cash Proceeds or Excess Cash Flow from such Foreign Subsidiary would result in material adverse consequence with respect to Taxes, fees or similar impositions of Governmental Authorities (including any actual cash Tax liability of more than $10,000,000 owed to any Governmental Authorities that would be incurred in connection with such mandatory prepayment provisions, as determined after utilizing any of the Borrower’s available net operating losses or other available Tax attributes); provided that in the event the Borrower is required to make a payment of Net Cash Proceeds or Excess Cash Flow attributable to a Foreign Subsidiary, such payment shall be made as soon as practicable based on applicable legal, regulatory or commercial restraints after the Borrower becomes aware that such repatriation would not be prohibited by applicable local law or result in material adverse consequences with respect to Taxes, fees or similar impositions of Governmental Authorities.
(m) In the event that the Collateral Agent delivers written notice to the Escrow Agent pursuant to Section 3(d) of the Escrow Agreement, the Closing Date Term Loans, all accrued interest thereon and all other Obligations with respect thereto shall be immediately due and payable, and the Administrative Agent shall apply all proceeds received from the Escrow Account in accordance with Section 4.2 and Section 4.8; provided that if the amount of the Escrow Property is less than the amount required to prepay the Closing Date Term Loans, all accrued interest thereon and all other Obligations with respect thereto in full on such date, the Borrower will deliver to the Administrative Agent, on the date of such prepayment, an amount equal to such deficiency.
(n) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 (a)-(e) shall be applied applied, without premium or penalty (other than in connection with a Repricing Event) first, to the prepayment of the Term Loans in accordance with Section 4.8 and and, second, to prepay the Revolving Loans without any permanent reduction of the Revolving Commitments, in each case on a pro rata basis. The application of any prepayment pursuant to this Section 4.2 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar EurocurrencySOFR Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid, and any premium applicable thereto under Section 4.1(b); provided, further, that if a EurocurrencySOFR Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 4.11.
(o) Each Term Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or PDF attachment to an e-mail) The TotalAdditional at least one Business Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment pursuant to Section 4.2(a)-(e) of its Loans (such declined prepayment amounts, “Declined Prepayments”) other than any prepayment from the proceeds of any Replacement Facility, in which case (i) such Declined Prepayments shall be applied pro rata to all Term B Commitment (and the Term Commitments Loans of each LenderTerm Lender that did not elect to decline such prepayment, and (ii) to the extent of any excess, such Declined Prepayments shall terminate in its entirety be retained by the Borrower.
(p) If at 5:00 p.m., New York City any time, (i) other than as a result of fluctuations in currency exchange rates, (A) the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures (calculated, with respect to those Revolving Extensions of Credit denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Revolving Extension of Credit) exceeds the Total Revolving Commitments or (B) the sum of the aggregate principal Dollar Amount of all of the outstanding L/C Exposures and Revolving Credit Exposures denominated in Foreign Currencies (the “Foreign Currency Exposure”) (so calculated), as of the most recent Computation Date with respect to each such Revolving Extension of Credit exceeds the Foreign Currency Sublimit or (ii) solely as a result of fluctuations in currency exchange rates, (A) the sum of the aggregate principal Dollar Amount of all of the Revolving Extensions of Credit (so calculated) exceeds 105% of the Total Revolving Commitments or (B) the Foreign Currency Exposure, as of the most recent Computation Date with respect to each such Revolving Extension of Credit, exceeds 105% of the Foreign Currency Sublimit, the Borrower shall in each case immediately repay Revolving Loans or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Closingupon funding Administrative Agent, as applicable, in an aggregate principal amount sufficient to cause (x) the aggregate Dollar Amount of all Revolving Extensions of Credit (so calculated) to be less than or equal to the Total Revolving Commitments and (y) the Foreign Currency Exposure to be less than or equal to the Foreign Currency Sublimit, as applicable, provided that, in the case of prepayments of Revolving Loans, if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Amendment No.1Administrative Agent.
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Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.[Reserved].
(1b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within five Business Days following such date toward the prepayment of the Term Loans as set forth (or, following the payment in Section 4.2(dfull of the Term Loans, any outstanding Revolving Loans, Swingline Loans or Protective Advances); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, in any fiscal year of the Borrower, an amount equal to 5% of Consolidated Total Assets as of the last day of the Borrower’s immediately preceding fiscal year, and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth (or, following the payment in Section 4.2(dfull of the Term Loans, any outstanding Revolving Loans, Swingline Loans or Protective Advances).
(2) Notwithstanding ; provided, further, that, notwithstanding the foregoing, the Borrower shall not be required to prepay the Term Loans in accordance with this paragraph (b) except to the extent that (and for so long as) any of or all of the Net Cash Proceeds from all Asset Sales or Recovery Events which have not been so applied equals or exceeds $20,000,000 in the aggregate; provided further that any prepayment of any Asset Sale Revolving Loans, Swingline Loans or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment Protective Advances pursuant to this Section 4.2(b)(12.11(b) (each such Asset Sale and Recovery Event, shall not result in a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to reduction in the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionRevolving Commitments.
(c) The 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 each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.[Reserved].
(d) Amounts to be applied in connection with prepayments made [Reserved].
(i) In the 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 prepayment of Loans pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 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 prepaidprepaid 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.
(eg) The TotalAdditional Term B Commitment 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 Term Commitments Issuing Lender. Notwithstanding the foregoing, to the extent any funds credited to the Collection Account constitute Net Cash Proceeds from any Asset Sale or Recovery Event, the application of each Lender) such Net Cash Proceeds shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1be subject to Section 2.11(b).
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Mandatory Prepayments. (a) To the extent the Preferred Stock Redemption is not consummated on or before the Preferred Stock Redemption Date, 100% of the Redemption Amount shall be applied on the Business Day immediately following the Preferred Stock Redemption Date toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(g).
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded Credit Agreement Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(g).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or from any Recovery Event then, unless a Reinvestment Notice shall be delivered in respect within three Business Days after receipt thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on after such date third Business Day toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(g); provided that, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(g).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Borrower commencing with the fiscal year ending December 31, 2025, there shall be Excess Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the BorrowerFlow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage difference of the excess, if any, 50% of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period orminus the aggregate amount of any voluntary prepayments (including Discounted Prepayments made pursuant to Section 2.29 and assignments to Holdings, at the option Borrower or any Subsidiary made pursuant to Section 10.6(h), with the amount of such prepayment being equal to the amount actually paid by the Borrower (or Holdings or any Subsidiary, as applicable)) of the BorrowerTerm Loans or to the extent the Revolving Commitment is permanently reduced by an amount equal to such payment, on any voluntary prepayments of the Revolving Loans, made during such year (in each case, to the extent such payment is not financed with the proceeds of Indebtedness for borrowed money or prior such Excess Cash Flow Application Date, the proceeds of an equity issuance) toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(g); provided that such percentage shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 2.40 to 1.00 but greater than 1.90 to 1.00 and (ii) 0% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 1.90 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than ten the earliest of three Business Days after (10i) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders, and (ii) the date such financial statements are actually delivered.
(de) Upon the receipt of any Specified Equity Contribution, 100% of such Specified Equity Contribution shall be applied within five (5) Business Days after receipt thereof toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(g).
(f) If on any date any Group Member shall receive any Extraordinary Receipts, 100% of the net cash proceeds of such Extraordinary Receipts shall be applied within five (5) Business Days after receipt thereof toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(g).
(g) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of scheduled installments due in respect of the Term Loans ratably for each upcoming scheduled installment payment of Term Loans required under Section 2.3 (excluding the final payment at the Term Loan Maturity Date) until each such scheduled installment is paid in accordance with Section 4.8 and firstfull and, thereafter, to Base Rate the final payment due in respect of the Term Loans on the Term Loan Maturity Date, and, secondin each case, to Eurodollar Loansthe extent accrued shall be paid together with accrued interest to the date of such prepayment on the amount prepaid; provided that any Term Lender may decline any such prepayment made pursuant to this Section 2.12 (other than any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness) (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be retained by the Borrower. Each prepayment of the Term Loans under this Section 4.2 2.12 (except in the case of Revolving Loans that are ABR Loans, in the event all Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than three (3) Business Days prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date and (ii) the aggregate amount of such prepayment.
(eh) The TotalAdditional Term B Commitment Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction.
(i) Mandatory prepayments made pursuant to Section 2.12(b) and Section 2.12(c) shall be subject to the prepayment premium set forth in Section 2.9(d).
(j) Notwithstanding any provisions of this Section 2.12 to the contrary, to the extent the Borrower determines, acting in good faith, that any repatriation or distribution (or deemed repatriation or deemed distribution for tax purposes) to the Borrower of Net Cash Proceeds, Excess Cash Flow, and Extraordinary Receipts described in this Section 2.12 that are attributable to any Subsidiary would reasonably be expected to result in material adverse Tax consequences to any Group Member (as determined by the Borrower in good faith and in consultation with the Administrative Agent), or would be prohibited or restricted by applicable Requirements of Law, or applicable Operating Documents or material agreements of such Subsidiary, the applicable Net Cash Proceeds, Excess Cash Flow, or Extraordinary Receipts, as applicable, shall not be required to be so repatriated or distributed and the Term Commitments relevant amounts shall not be required to be prepaid in accordance with this Section 2.12. To the extent that the relevant material adverse Tax consequences, restrictions imposed by Requirements of Law or restrictions set forth in the applicable Operating Documents or material agreements, in each Lendercase, would no longer be applicable at any time in the twelve (12) month period following the day that the relevant amounts would otherwise be required to be prepaid pursuant to this Section 2.12, the Borrower shall terminate cause such amounts to be prepaid as and to the extent otherwise required pursuant to this Section 2.12. The Borrower will use commercially reasonable efforts to avoid or mitigate any material adverse Tax consequences, restrictions imposed by Requirements of Law and restrictions set forth in its entirety at 5:00 p.m.the applicable Operating Documents or material agreements, New York City timein each case, on that would otherwise limit an obligation of the Closingupon funding on Borrower to make a mandatory prepayment in accordance with the Amendment No.1terms of this Section 2.12.
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Mandatory Prepayments. (a) 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 Holdings or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)of its Restricted Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on not later than one Business Day after the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member Loan Party shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on not later than five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that, that notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward and (y) on the prepayment of 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 4.2(d).
(22.12(d) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the an amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such reductionTrigger Date.
(c) The Borrower Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of Holdings commencing with the fiscal year ending September 30, 2013, there shall be Excess Cash Flow, Holdings shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of an amount equal to (i) the Excess Cash Flow for the related Percentage of such Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such Excess Cash Flow Payment Period or, at fiscal year to the option extent accompanied by permanent optional reductions of the BorrowerRevolving Commitments and all optional prepayments of the Term Loans during such fiscal year, on or prior in each case other than to the extent any such Excess Cash Flow Application Dateprepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment If at any time (computed by the Administrative Agent, who shall promptly provide notice to the Revolving Lenders and the Borrower) the aggregate outstanding principal amount of the aggregate Revolving Extensions of Credit shall exceed the aggregate Revolving Commitments, the Borrower shall immediately prepay such Revolving Extensions of Credit in such amounts as shall be necessary so that after giving effect thereto the aggregate outstanding principal amount of such aggregate Revolving Extensions of Credit do not exceed the aggregate Revolving Commitments.
(f) Notwithstanding anything to the contrary in Sections 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment pursuant to this Section 2.12 that is allocated to Tranche B Term Commitments Loans and/or any Tranche of New Term Loans (such amount for such Class, the “Prepayment Amount”, and each such Class, an “Applicable Class”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such Prepayment Amount to the Applicable Class of Term Loans as provided in paragraph (d) above, on the date specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender and each New Term Lender a notice substantially in the form of Exhibit L (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender and each New Term Lender a Prepayment Option Notice, which shall be in a form reasonably satisfactory to the Administrative Agent, and shall include an offer by the Borrower to prepay, on the date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, each Applicable Class of Loans of such Lender by an amount equal to the portion of the Prepayment Amount for such Class indicated in such Lender) shall terminate in ’s Prepayment Option Notice as being applicable to such Lender’s Applicable Class of Term Loans. Each Tranche B Term Lender and each New Term Lender may reject all or a portion of its entirety at Prepayment Amount of the Applicable Class by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m., p.m. (New York City time) one Business Day after such Lender’s receipt of the Prepayment Option Notice (which notice shall specify the principal amount of the Prepayment Amount for each Applicable Class to be rejected by such Lender); provided that any Lender’s failure to so reject such Prepayment Amount for any Applicable Class shall be deemed an acceptance by such Lender of such Prepayment Option Notice for such Applicable Class and the amount to be prepaid in respect of Term Loans of such Applicable Class held by such Lender. On the Mandatory Prepayment Date, on the Closingupon funding on Borrower shall (i) pay to the Amendment No.1relevant Lenders the aggregate amount necessary to prepay that portion of the outstanding Term Loans of the Applicable Class in respect of which such Lenders have (or are deemed to have) accepted prepayment as described above and (ii) prepay outstanding Tranche A Term Loans in an aggregate amount equal to the amounts declined by Lenders as described above; provided that, upon the making of such prepayments, any amount remaining unapplied (i.e., after the payment in full of the Term Loans) shall be returned to the Borrower.
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Mandatory Prepayments. (a) If any Capital Stock shall be issued by any Group Member (excluding Capital Stock issued to a Group Member or to any Permitted Investor), an amount equal to 50% of the Net Cash Proceeds thereof in excess of $500,000 shall be applied on the date of such issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(e).
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that, that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Borrower (commencing with the fiscal year ending December 31, 2020), there shall be Excess Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the BorrowerFlow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at (minus the option aggregate amount of all prepayments of Revolving Loans during such fiscal year to the extent accompanying permanent optional reductions of the BorrowerRevolving Commitments, on or prior and all optional prepayments of the Term Loans during such Excess Cash Flow Application Datefiscal year (excluding, in each case, prepayments to the extent financed with proceeds of other Indebtedness)) toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that such percentage shall be reduced to (i) 25% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 3.00 to 1.00 but equal to or greater than 2.00 to 1.00 and (ii) 0% if the Consolidated Leverage Ratio as of the last day of such fiscal year is less than 2.00 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than ten the earliest of (10i) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered[Reserved].
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans installments due in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment respect of the Term Loans on a pro
(f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 4.2 shall be accompanied 2.12, (i) a certificate signed by accrued interest to a Responsible Officer setting forth in reasonable detail the date calculation of the amount of such prepayment on or reduction and (ii) to the extent practicable, at least five (5) Business Days’ prior written notice of such prepayment or reduction (and the Administrative Agent shall promptly provide the same to each Lender). Each notice of prepayment shall specify the prepayment or reduction date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.
(eg) The TotalAdditional Term B Commitment No prepayment fee shall be payable in respect of any mandatory prepayments made pursuant to this Section 2.12 (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1other than Section 2.12(b)).
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Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(e).
(1b) If on any date any Group Member shall receive Net Cash Proceeds in excess of $2,500,000 in any fiscal year from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(e); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(e).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts If on any date any Group Member shall receive net cash proceeds from the Zurich Insurance Settlement, an amount equal to 50% of the cash proceeds thereof shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(e). Each such prepayment shall be made on a date no later than five (5) Business Days after the date on which such net cash proceeds is actually received by such Group Member.
(e) Unless any Increase Term Joinder or any other amendment governing any Incremental Term Loans, any Replacement Term Loans and/or any term loans provided by an Extending Term Lender provides that Incremental Term Loans, Replacement Term Loans or such term loans provided by an Extended Term Lender, as applicable, shall participate on a less than pro rata basis with the Initial Term Loans in connection with prepayments pursuant to this Section 4.2, each prepayment of Term Loans pursuant to this Section 4.2 shall be applied on a pro rata basis between the Initial Term Loans and each Additional Term Facility then outstanding based on the aggregate principal amount of the Term Loans under each such Term Facility then outstanding (provided that any prepayment of Term Loans with the net proceeds of an Incremental Term Facility or Replacement Term Loans incurred for the purpose of refinancing or replacing such Term Loans shall be applied to the Term Loans of the applicable Term Facility being refinanced or replaced). With respect to Term Loans under any Term Facility, amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to against the prepayment remaining scheduled installments of principal due in respect of the Term Loans of such Term Facility 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 Term Facility in direct order of maturity), and each such prepayment shall be paid to the Term Lenders of such Class in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar LoansLoans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 4.11. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ef) The TotalAdditional 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 B Commitment Loans required to be made by the Borrower pursuant to clause (b) or (c) of this Section 4.2, to decline all (but not a portion) of its share 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 4.2(a) above to the extent that such prepayment is made with the Net Cash Proceeds of any Permitted Refinancing 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 share 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 share of the total amount of such mandatory prepayment of Term Loans.
(g) Notwithstanding the foregoing, to the extent that (and for so long as) the repatriation to the Borrower as a distribution or dividend of any amounts required to mandatorily prepay the Term Commitments Loans pursuant to Sections 4.2(b) or (c) above that are attributable to any Foreign Subsidiary are (i) prohibited or delayed by applicable local Requirements of each LenderLaw from being repatriated to the jurisdiction of organization of the Borrower or (ii) would result in a material and adverse Tax liability (including any withholding Tax) (such amount, a “Restricted Amount”), the calculation of Net Cash Proceeds and/or Excess Cash Flow, as applicable, shall terminate be reduced by such Restricted Amount; provided, that once such repatriation of any such affected Net Cash Proceeds and/or Excess Cash Flow, as applicable, is (x) permitted under the applicable local Requirements of Law and/or (y) would no longer result in its entirety at 5:00 p.m.such material and adverse Tax liability, New York City timethe Group Members shall be treated as having received Net Cash Proceeds and/or Excess Cash Flow, on as applicable, equal to the Closingupon funding on the Amendment No.1amount of such reduction.
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Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded IndebtednessIndebtedness incurred pursuant to Section 7.2(f)(ii))), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(c).
(1b) If Subject to Section 2.12(d), if on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, which, together with the Net Cash Proceeds received from all other Asset Sales or Recovery Events in such fiscal year exceed the greater of $75,000,000 and 5.0% of Consolidated Total Assets of the Parent Borrower and its Subsidiaries at such date, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds in excess of the greater of $75,000,000 and 5.0% of Consolidated Total Assets of the Parent Borrower and its Subsidiaries at such date, and an amount equal to all Net Cash Proceeds received thereafter in such fiscal year, shall be applied on such date of receipt toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(c); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(c).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b). The application of any prepayment pursuant to this Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Term Benchmark Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ed) The TotalAdditional Term B Commitment Notwithstanding any provision to the contrary in this Agreement, the following amounts shall be excluded from the calculation of the amount of Net Cash Proceeds from any Asset Sale or Recovery Event, as applicable:
(i) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, as applicable, the distribution of which by a Foreign Subsidiary to the Parent Borrower or a Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary is prohibited or delayed by applicable local law. Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this Section 2.12(d)(i) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b), so long, but only so long, as the applicable local law will not permit a distribution of those funds by the Foreign Subsidiary (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable by the applicable law to eliminate such limitations). Once the distribution of any of such affected Net Cash Proceeds is permitted under the applicable local law, the Parent Borrower shall prepay the Term Commitments Loans (not later than five (5) Business Days after such distribution is permitted) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(d)(ii) precludes such prepayment; and
(ii) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, in each Lender) shall terminate case, to the extent that the Parent Borrower has determined in its entirety reasonable judgment that the distribution of any of or all such items to the Parent Borrower or any Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary would have any adverse tax consequence. Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this Section 2.12(d)(ii) will not be required to be applied to repay Loans at 5:00 p.m.the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b). Once the Parent Borrower determines in its reasonable judgment that a distribution of any of such affected Net Cash Proceeds would cease to result in adverse tax consequences, New York City timethe Parent Borrower shall prepay the Term Loans (not later than five (5) Business Days after such determination) by an amount equal to such portion of such affected amount, on except, for the Closingupon funding on avoidance of doubt, to the Amendment No.1extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(c)(i) precludes such prepayment. Notwithstanding anything to the contrary in this Section 2.12, in no event shall any Group Member be required to repatriate cash of Non-Domestic Subsidiaries to the United States or include such amounts in any mandatory prepayment formula in respect of any obligations of the Parent Borrower or any of its U.S. Subsidiaries arising out of the Loan Documents.
Appears in 1 contract
Mandatory Prepayments. (a) If any Indebtedness or Disqualified Capital Stock shall be incurred or issued by any Group Member after the Closing RestatementAmendment No. 5 Effective Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application DateDate commencing with the Excess Cash Flow Application Date applicable to the fiscal year of the Borrower ending September 29, 2013,27, 2015, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f). Each Except as provided below, each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders. Notwithstanding the foregoing, the Borrower will not be required to prepay the Loans pursuant to this clause (c) with respect to any Excess Cash Flow for the related Excess Cash Flow Payment Period attributable to a Foreign Subsidiary if the repatriation of such Excess Cash Flow from such Foreign Subsidiary at any time during the fiscal year in which such Excess Cash Flow Application Date occurs would cause adverse consequences from fees, taxes or similar impositions of Governmental Authorities to the Borrower or would otherwise be payable as a result of the occurrence of any one-time repatriation holidays; provided that in the event the Borrower is required to make a payment of Excess Cash Flow attributable to a Foreign Subsidiary, such payment shall be made no later than ten (10) days after the Borrower becomes aware that such repatriation would not cause adverse consequences from fees, taxes or similar impositions of Governmental Authorities to the Borrower; provided further that in the event that the Borrower is not required to make a payment of Excess Cash Flow attributable to a Foreign Subsidiary during the fiscal year in which such Excess Cash Flow Application Date occurs, no payment shall be due in any succeeding fiscal year.
(d) Amounts In the event that either a Zarlink Compulsory Acquisition or a Zarlink Subsequent Acquisition Transaction, as the case may be, is required to complete the Zarlink Acquisition, and the Borrower fails to consummate such Zarlink Compulsory Acquisition or Zarlink Subsequent Acquisition Transaction, as the case may be, on or prior to the date that is one hundred and twenty (120) days after the Restatement Date, within one (1) Business Day of such date, the Borrower shall prepay the outstanding Term Loans borrowed on the Zarlink Offer Closing Date in an amount equal to the Zarlink Acquisition Consideration Blocked Amount (for the avoidance of doubt, less any amounts paid on any Zarlink Offer Extension Closing Date) that has not been used for a purpose permitted by Section 8.17.[RESERVED].
(e) [RESERVED].
(f) Except for prepayments required pursuant to Section 4.2(d) (such prepayment solely to be applied to repay the Term Loans), amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied applied, first, to the prepayment of the Term Loans in accordance with Section 4.8 and, second, to prepay the Revolving Loans without any permanent reduction of the Revolving Commitments, in each case on a pro rata basis; provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 4.2 shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(eg) The TotalAdditional [RESERVED].
(h) Any prepayment of Term B Commitment Loans made pursuant to Section 4.2(a) on or prior to the first anniversary of the Fourth Amendment Effective Date with the proceeds of Indebtedness incurred by the Borrower from a substantially concurrent borrowing of loans provided by one or more banks, funds or other financial institutions (and other than any such borrowing pursuant to a refinancing of all the facilities or the Term Commitments Loans under this Agreement in connection with a Permitted Acquisition, Change of each LenderControl or other transaction not permitted by this Agreement (prior to giving effect to any amendment, waiver or other modification of this Agreement that is effected in connection with such transaction)) for which the interest rate payable thereon is, or upon satisfaction of specified conditions could reasonably be expected to be, less than the interest rate applicable to Term Loans that are Eurodollar Loans at the time of such prepayment shall terminate in its entirety at 5:00 p.m.be subject to the payment of a premium of 1.0% of the aggregate principal amount of such prepayment. For the avoidance of doubt, New York City time, on any prepayment or repayment of Term Loans funded directly or indirectly with the Closingupon funding on proceeds of Capital Stock issued by the Borrower or equity contributed to the Borrower and received after the Fourth Amendment No.1Effective Date shall not require the payment of any premium contemplated by the preceding sentence.
Appears in 1 contract
Sources: Credit Agreement (Microsemi Corp)
Mandatory Prepayments. (a) If (i) any Specified Capital Stock shall be issued by any Group Member, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied within five Business Days after the date of such issuance toward the prepayment of the Term Loans as set forth in Section 2.11(d), and (ii) any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtednessexcluding any Indebtedness permitted under Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within five Business Days after the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on within five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower, (ii) the aggregate Net Cash Proceeds of Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (iii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2005, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply an amount equal to (x) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at minus (y) the option aggregate amount of all prepayments of Revolving Loans during such fiscal year to the extent accompanying permanent optional reductions of the Borrower, on or prior Revolving Commitments and all optional prepayments of the Term Loans during such Excess Cash Flow Application Datefiscal year, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with the first sentence of Section 4.8 2.17(b), and the application to the installments thereof shall be, first, to Base Rate the scheduled installments of the Term Loans set forth in Section 2.3 occurring within the next twelve months following the date specified for such prepayment in direct order of maturity and, second, to Eurodollar Loansthe remaining installments pro rata based upon the then remaining principal amounts thereof. Each prepayment of the Term Loans under this Section 4.2 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Mandatory Prepayments. (a) If In addition, in the event that the Company or any Indebtedness of its Subsidiaries shall be incurred receive any Net Cash Proceeds as a result of any Prepayment Event, the Company shall prepay the Term Loans, on the date upon which the Company or issued by any Group Member after such Subsidiary, as the Closing Date (other than Excluded Indebtedness)case may be, shall have received such Net Cash Proceeds, in an amount equal to 100% the Prepayment Percentage applicable to such Net Cash Proceeds; provided that (i) if the Prepayment Percentage of the Net Cash Proceeds thereof in respect of any Prepayment Event results in an amount of less than $1,000,000, such prepayment shall be applied required to be made on the date on which the Company or any of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event thenwhich, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such together with all other Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided thatfrom Prepayment Events not previously applied, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount are equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoingat least $1,000,000, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on or before the fifth (5th) Domestic Business Day following the consummation of any Asset Sale constituting a date Prepayment Event, (an “Excess Cash Flow Application Date”iii) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans required under this Section 4.2 2.05(c) unless and until the aggregate amount of Net Cash Proceeds received by the Company and its Subsidiaries in respect of Prepayment Events which have occurred after the Effective Date exceeds $75,000,000, (iv) no prepayments shall be accompanied by accrued interest required under this Section 2.05(c) on any date if and to the extent the aggregate principal amount of Term Loans outstanding on such date does not exceed $25,000,000 and (v) at the election of the Borrowers, if the amount of any such prepayment to be made exceeds the amount of Term Loans then outstanding having an Interest Period ending on the date of such prepayment on prepayment, such excess amount shall be deposited in the Collateral Account under the Company Security Agreement, and such excess shall not be required to be prepaid until the last day of the Interest Periods relating to such outstanding Term Loans in an aggregate principal amount prepaid.
(e) equal to or greater than such excess amount, unless an Event of Default has occurred and is continuing or the Required Banks otherwise determine in their sole discretion and so notify the Company. The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) Borrowers shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1give the
Appears in 1 contract
Sources: Credit and Reimbursement Agreement (Orbital Sciences Corp /De/)
Mandatory Prepayments. (a) If If, for any Indebtedness fiscal year of BA commencing with the fiscal year ending December 31, 2013, there shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Excess Cash Proceeds thereof shall be applied on the date of Flow for such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrowerfiscal year, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower Borrowers shall, on each the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the ECF Percentage of the excess, if any, of (i) such Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the aggregate amount of all optional prepayments of the Loans during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Datefiscal year, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements referred to in Section 7.1(a) ), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersAdministrative Agent and (ii) the date such financial statements are actually delivered to the Administrative Agent.
(b) If any Indebtedness (other than Excluded Indebtedness) shall be issued or incurred by any of the Borrowers or any of their respective Subsidiaries, the Borrowers shall apply, on the date of such issuance or incurrence, an amount equal to 100% of the Net Cash Proceeds thereof toward the prepayment of the Loans as set forth in Section 4.2(d).
(c) If any of the Borrowers or any of their respective Subsidiaries shall receive Net Cash Proceeds (or Net Cash Proceeds shall be received on behalf of any of the Borrowers or any of their respective Subsidiaries) (including cash proceeds subsequently received (as and when received) in respect of noncash consideration initially received) from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered within 10 days in respect thereof, the Borrowers shall apply on such date an amount equal to such Net Cash Proceeds toward the prepayment of the Loans as set forth in Section 4.2(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, the Borrowers shall apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event toward the prepayment of the Loans as set forth in Section 4.2(d).
(d) Amounts Subject to Section 4.8(b), amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to reduce the prepayment remaining scheduled installments (including the final scheduled installment on the Maturity Date (or such later maturity date of the Term any Loans extended in accordance with Section 4.8 and 3.3)) of principal due in respect of the Loans on a pro rata basis. The application of any prepayment pursuant to Section 4.2 shall be made, first, to Base Rate Loans and, second, to Eurodollar LIBOR Loans. Each prepayment of the Term Loans under this pursuant to Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. If a LIBOR Loan is prepaid pursuant to Section 4.2 on any day other than the last day of the Interest Period applicable thereto, the Borrowers shall also pay any amounts owing pursuant to Section 4.11.
(e) The TotalAdditional Term B Commitment Notwithstanding anything herein to the contrary, 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 Borrowers pursuant to this Section 4.2, to decline all of any prepayment of its Loans pursuant to clauses (a), (b) or (c) of this Section 4.2, in which case the aggregate amount of the prepayment that would have been applied to prepay such Loans but was so declined shall be re-offered to those Lenders who have initially accepted such prepayment (such re-offer to be made to each such Lender based on the percentage which such Lender’s Loans represents of the aggregate Loans of all such Lenders who have initially accepted such prepayment). In the event of such a re-offer, the relevant Lenders may elect, by notice to the Administrative Agent at or prior to the time and in the Term Commitments manner specified by the Administrative Agent, to decline all of each Lenderthe amount of such prepayment that is re-offered to them, in which case the aggregate amount of the prepayment that would have been applied to prepay such Loans pursuant to such re-offer but was so declined (any such amount, a “Retained Amount”) shall terminate in its entirety at 5:00 p.m., New York City time, on be retained by the Closingupon funding on Borrowers to be used for any other purpose permitted pursuant to the Amendment No.1Available Basket Amount.
Appears in 1 contract
Sources: Credit Agreement (Gogo Inc.)
Mandatory Prepayments. (a) [Reserved].
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded Credit Agreement Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect within three Business Days after receipt thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on after such date third Business Day toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to Borrower commencing after the jurisdiction of organization end of the Borrowerfiscal year ending December 31, 2021, there shall be Excess Cash Flow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage difference of the excess, if any, 50% of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period orminus the aggregate amount of any voluntary prepayments (including Discounted Prepayments made pursuant to Section 2.29 and assignments to Holdings, at the option Borrower or any Subsidiary made pursuant to 10.6(h), with the amount of such prepayment being equal to the Borroweramount actually paid by the Borrower (or Holdings or any Subsidiary, on or prior such Excess Cash Flow Application Date, toward the prepayment as applicable)) of the Term Loans or to the extent the Revolving Commitment is permanently reduced by an amount equal to such payment, any voluntary prepayments of the Revolving Loans, made during such year; provided that such percentage shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as set forth in Section 4.2(d)of the last day of such fiscal year is less than or equal to 3.00 to 1.00 but greater than 2.00 to 1.00 and (ii) 0% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 2.00 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than ten the earliest of three Business Days after (10i) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders, and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans in direct order of maturity for the next four scheduled payments of Term Loans required under Section 2.3, and then ratably to the remaining scheduled installments due in respect of the Term Loans in accordance with Section 4.8 Sections 2.3 and 2.18(b) (provided that any Term Lender may decline any such prepayment (other than any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness) (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed first, to Base Rate the prepayment, on a pro rata basis, of the Term Loans and, held by Term Lenders that have elected to accept such Declined Amounts; second, to Eurodollar Loansthe extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans in accordance with Section 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); third, to the extent of any residual, if no Term Loans or Revolving Loans remain outstanding, to the deposit of an amount in cash (in an amount not to exceed 105% of the then existing L/C Exposure) in a cash collateral account for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender; and fourth, to the extent of any residual, retained by the Borrower. Each prepayment of the Term Loans under this Section 4.2 2.12 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans, in the event all Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than three (3) Business Days prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of such prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile not later than one (1) Business Day prior to the Mandatory Prepayment Date.
(ef) The TotalAdditional Term B Commitment Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction.
(g) No prepayment fee or other penalty or premium shall be payable in respect of any mandatory prepayments made pursuant to this Section 2.12.
(h) Notwithstanding any provisions of this Section 2.12 to the contrary, to the extent the Borrower determines, acting in good faith, that any repatriation or distribution (or deemed repatriation or deemed distribution for tax purposes) to the Borrower of Net Cash Proceeds or Excess Cash Flow described in this Section 2.12 that are attributable to any Subsidiary would reasonably be expected to result in material adverse Tax consequences to any Group Member (as determined by the Borrower in good faith), or would be prohibited or restricted by applicable Requirements of Law, or applicable Operating Documents or material agreements of such Subsidiary, the applicable Net Cash Proceeds or Excess Cash Flow shall not be required to be so repatriated or distributed and the Term Commitments relevant amounts shall not be required to be prepaid in accordance with this Section 2.12. To the extent that the relevant adverse Tax consequences, restrictions imposed by Requirements of Law or restrictions set forth in the applicable Operating Documents or material agreements, in each Lendercase, would no longer be applicable at any time in the twelve (12) month period following the day that the relevant amounts would otherwise be required to be prepaid pursuant to this Section 2.12, the Borrower shall terminate cause such amounts to be prepaid as and to the extent otherwise required pursuant to this Section 2.12. The Borrower will use commercially reasonable efforts to avoid or mitigate any material adverse Tax consequences, restrictions imposed by Requirements of Law and restrictions set forth in its entirety at 5:00 p.m.the applicable Operating Documents or material agreements, New York City timein each case, on that would otherwise limit an obligation of the Closingupon funding on Borrower to make a mandatory prepayment in accordance with the Amendment No.1terms of this Section 2.12.
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Mandatory Prepayments. (a) If Unless the Required Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness permitted to be incurred under Section 6.2), then on the date of such incurrence, the Loans shall be prepaid, by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence. The provisions of this Section 2.7(a) do not constitute a consent to the incurrence of any Indebtedness by the Borrower or issuance toward the prepayment any of the Term Loans as set forth in Section 4.2(d)its Subsidiaries.
(1b) If Unless the Required Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereofthereof on or prior to the date of such Asset Sale or Recovery Event, on the date of receipt by the Borrower or such Subsidiary of such Net Cash Proceeds, the Loans shall be prepaid, by an amount equal to 100% the amount of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Proceeds; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment DateDate the Loans shall be prepaid, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment Event. The provisions of the Term Loans as set forth in this Section 4.2(d).
(2) Notwithstanding the foregoing, do not constitute a consent to the extent that (and for so long as) any of or all of the Net Cash Proceeds consummation of any Asset Sale or any Recovery Event Disposition not permitted by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction6.5.
(c) The Borrower shallUnless the Required Lenders shall otherwise agree, if, for any fiscal year of the Subsidiaries commencing with the fiscal year ending on December 31, 2007, there shall be Excess Cash Flow, then, on each the relevant Excess Cash Flow Application Date, apply the Loans shall be prepaid by an amount equal to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Flow. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 5.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
Lenders and (dii) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidfinancial statements are actually delivered.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date Loan Party (other than Excluded Indebtedness), excluding any Indebtedness incurred in accordance with Section 7.2) an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of as soon as practicable but in any event within five Business Days after such issuance or incurrence or issuance toward the prepayment of the Tranche B-1 Term Loans as set forth in Section 4.2(d2.11(d).
(1b) If on any date any Group Member Loan Party shall receive Net Cash Proceeds from any Asset Sale, Sale Leaseback Transaction or Recovery Event Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such as soon as practicable but in any event within ten days after the date of receipt thereof toward the prepayment of the Tranche B-1 Term Loans as set forth in Section 4.2(d2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Tranche B-1 Term Loans as set forth in Section 4.2(d2.11(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any fiscal year of the Borrower commencing with the fiscal year ending September 30, 2011, there shall be Excess Cash Flow; provided that for the fiscal year of the Borrower ending on September 30, 2011, Excess Cash Flow shall only be calculated from the period beginning April 1, 2011 and ending September 30, 2011, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at less (ii) the option 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 BorrowerRevolving Commitments and the aggregate amount of cash used for all optional prepayments of Term Loans (for the avoidance of doubt, not including any cash used to prepay Tranche B Term Loans on or prior the Amendment and Restatement Effective Date) made during such Excess Cash Flow Application Datefiscal year, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made The application of any prepayment of Tranche B-1 Term Loans pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate 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 the Tranche B-1 Term Loans under this Section 4.2 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid and by any amounts payable pursuant to Section 2.20.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Sources: Amendment Agreement (National Mentor Holdings, Inc.)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by the Borrower or any Group Member Restricted Subsidiary after the Closing Acquisition Effective Date (other than Excluded IndebtednessIndebtedness but including, for the avoidance of doubt, any Replacement Facility), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of promptly upon such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(1b) If on any date after the Acquisition Effective Date the Borrower or any Group Member Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on within five (5) Business Days of such date toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application DateDate commencing with the Excess Cash Flow Application Date applicable to the fiscal year of the Borrower ending December 31, 2016, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments voluntary prepayments of the Loans (including the Term Loans but excluding prepayments of the Revolving Facility to the extent there is not an equivalent permanent reduction in commitments thereunder) and Dutch Auction purchases of Term Loans pursuant to Section 11.6(j) to the extent of cash payments by the Borrower in connection therewith, in each case made with Internally Generated Cash during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f); provided that with respect to the fiscal year period ending on December 31, 2016, (i) such calculation of Excess Cash Flow shall be pro rated to reflect the portion of Excess Cash Flow attributable to the period commencing on the Acquisition Effective Date and ending on December 31, 2016 and (ii) notwithstanding any such calculation hereunder, the aggregate amount of any mandatory prepayment under this Section 4.2(c) with respect to the fiscal year ending December 31, 2016 shall not exceed $75,000,000. Each Except as provided below, each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) 100 days after the date on which the financial statements referred to in Section 7.1(a) for end of the fiscal year of the Borrower with respect to for which such prepayment is made are required to be delivered to the Lenders.
(d) Notwithstanding the foregoing, the Borrower will not be required to prepay the Loans pursuant to clause (b) with respect to any Net Cash Proceeds from any Asset Sale or Recovery Event or pursuant to clause (c) with respect to any Excess Cash Flow for the related Excess Cash Flow Payment Period, in each case attributable to a Foreign Subsidiary to the extent (i) the repatriation of such Net Cash Proceeds or Excess Cash Flow is prohibited by applicable local law from being repatriated so long, but only so long, as the applicable local law will not permit such repatriation (the Borrower hereby agreeing to use commercially reasonably efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation) or (ii) the repatriation of such Net Cash Proceeds or Excess Cash Flow from such Foreign Subsidiary would result in material adverse consequence with respect to Taxes, fees or similar impositions of Governmental Authorities (including any actual cash Tax liability of more than $10,000,000 owed to any Governmental Authorities that would be incurred in connection with such mandatory prepayment provisions, as determined after utilizing any of the Borrower’s available net operating losses or other available Tax attributes); provided that in the event the Borrower is required to make a payment of Net Cash Proceeds or Excess Cash Flow attributable to a Foreign Subsidiary, such payment shall be made as soon as practicable based on applicable legal, regulatory or commercial restraints after the Borrower becomes aware that such repatriation would not be prohibited by applicable local law or result in material adverse consequences with respect to Taxes, fees or similar impositions of Governmental Authorities.
(e) In the event that the Collateral Agent delivers written notice to the Escrow Agent pursuant to Section 3(d) of the Escrow Agreement, the Closing Date Term Loans, all accrued interest thereon and all other Obligations with respect thereto shall be immediately due and payable, and the Administrative Agent shall apply all proceeds received from the Escrow Account in accordance with Section 4.2 and Section 4.8; provided that if the amount of the Escrow Property is less than the amount required to prepay the Closing Date Term Loans, all accrued interest thereon and all other Obligations with respect thereto in full on such date, the Borrower will deliver to the Administrative Agent, on the date of such prepayment, an amount equal to such deficiency.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 (a)-(e) shall be applied applied, without premium or penalty (other than in connection with a Repricing Event) first, to the prepayment of the Term Loans in accordance with Section 4.8 and and, second, to prepay the Revolving Loans without any permanent reduction of the Revolving Commitments, in each case on a pro rata basis. The application of any prepayment pursuant to this Section 4.2 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid, and any premium applicable thereto under Section 4.1(b); provided, further, that if a Eurocurrency Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 4.11.
(g) Each Term Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile transmission or PDF attachment to an e-mail) The TotalAdditional at least one Business Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment pursuant to Section 4.2(a)-(e) of its Loans (such declined prepayment amounts, “Declined Prepayments”) other than any prepayment from the proceeds of any Replacement Facility, in which case (i) such Declined Prepayments shall be applied pro rata to all Term B Commitment (and the Term Commitments Loans of each LenderTerm Lender that did not elect to decline such prepayment, and (ii) to the extent of any excess, such Declined Prepayments shall terminate in its entirety be retained by the Borrower.
(h) If at 5:00 p.m., New York City any time, (i) other than as a result of fluctuations in currency exchange rates, (A) the sum of the aggregate principal Dollar Amount of all of the Revolving Credit Exposures (calculated, with respect to those Revolving Extensions of Credit denominated in Foreign Currencies, as of the most recent Computation Date with respect to each such Revolving Extension of Credit) exceeds the Total Revolving Commitments or (B) the sum of the aggregate principal Dollar Amount of all of the outstanding L/C Exposures and Revolving Credit Exposures denominated in Foreign Currencies (the “Foreign Currency Exposure”) (so calculated), as of the most recent Computation Date with respect to each such Revolving Extension of Credit exceeds the Foreign Currency Sublimit or (ii) solely as a result of fluctuations in currency exchange rates, (A) the sum of the aggregate principal Dollar Amount of all of the Revolving Extensions of Credit (so calculated) exceeds 105% of the Total Revolving Commitments or (B) the Foreign Currency Exposure, as of the most recent Computation Date with respect to each such Revolving Extension of Credit, exceeds 105% of the Foreign Currency Sublimit, the Borrower shall in each case immediately repay Revolving Loans or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Closingupon funding on Administrative Agent, as applicable, in an aggregate principal amount sufficient to cause (x) the Amendment No.1aggregate Dollar Amount of all Revolving Extensions of Credit (so calculated) to be less than or equal to the Total Revolving Commitments and (y) the Foreign Currency Exposure to be less than or equal to the Foreign Currency Sublimit, as applicable, provided that, in the case of prepayments of Revolving Loans, if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof),
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Mandatory Prepayments. (a) If Except for Indebtedness expressly permitted under Section 6.2, if any Indebtedness described in clause (a) or (c) of the definition of "Indebtedness" shall be issued or incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)Covered Party, then, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1b) If on any date any Group Member Covered Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless unless
(i) no Event of Default has occurred and is continuing and (ii) a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoingLoans. In addition, 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 as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionLoans.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply If at any time the ECF Percentage aggregate outstanding principal amount of the excessLoans exceeds the Commitment, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at Borrower will immediately prepay or repay the option Loans in an amount necessary to cause the outstanding principal amount of the Borrower, on or prior such Excess Cash Flow Application Date, toward Loans not to exceed the prepayment of the Term Loans as set forth in Section 4.2(d)Commitment. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.-13-
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the Each such prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid and all amounts due and owing in respect thereof under Section 2.12.
(e) Any prepayment or repayment of COF Loans on any date other than the regularly scheduled payments of principal thereof on the scheduled dates due hereunder or on the Maturity Date shall also be accompanied by a fee equal to the "Yield Maintenance Fee" in an amount computed as follows: The TotalAdditional Term B Commitment current cost of funds, specifically the bond equivalent yield for United States Treasury securities (bills on a discounted basis shall be converted to a bond equivalent yield) with a maturity date closest to the remaining term of such COF Loans, shall be subtracted from the COF Rate, or default rate if applicable. If the result is zero or a negative number, there shall be no Yield Maintenance Fee due and payable. If the result is a positive number, then the resulting percentage shall be multiplied by the scheduled outstanding principal balance for each remaining monthly period of this note. Each resulting amount shall be divided by 360 and multiplied by the number of days in the monthly period. Said amounts shall be reduced to present values calculated by using the above reference current costs of funds divided by 12 and the Term Commitments COF Loan's remaining term in months. The resulting sum of each Lender) present values shall terminate in its entirety at 5:00 p.m.be the yield maintenance fee due to the Lender upon prepayment of the principal of the COF Loans plus any accrued interest due as of the prepayment date. Unless the Lender expressly agrees otherwise, New York City time, on partial payments will not affect the Closingupon funding on the Amendment No.1payment schedule required hereunder.
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Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded IndebtednessIndebtedness incurred pursuant to Section 7.2(f)(ii)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Subject to Section 2.12(e), if on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, which, together with the Net Cash Proceeds received from all other Asset Sales or Recovery Events in such fiscal year exceed $40,000,000, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds in excess of $40,000,000, and an amount equal to all Net Cash Proceeds received thereafter in such fiscal year, shall be applied on such date of receipt toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Subject to Section 2.12(e), if, for any fiscal year of the Borrower commencing with the fiscal year ending December 28, 2013, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply an amount equal to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or(such amount, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, “Adjusted ECF Amount”) toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that the Adjusted ECF Amount shall be reduced dollar-for-dollar (without duplication of amounts previously deducted from the Adjusted ECF Amount) by the aggregate amount of optional prepayments of the Tranche A Term Loans made pursuant to Section 2.11 or Section 10.6(b) (provided that with respect to any prepayment pursuant to Section 10.6(b) made by Borrower, the aggregate amount of such prepayment for purposes of this clause shall be the amount of the Borrower’s cash payment in respect of such prepayment) and the aggregate amount of optional prepayments of the Revolving Loans made pursuant to Section 2.11 to the extent accompanied by an equivalent permanent reduction in the Revolving Commitments, in each case made during the applicable fiscal year or after the end of the applicable fiscal year but before the applicable Excess Cash Flow Application Date. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b). The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding any provision to the contrary in this Agreement, the following amounts shall be excluded from the calculation of the amount of Net Cash Proceeds from any Asset Sale or Recovery Event or the Adjusted ECF Amount, as applicable:
(i) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary, Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary or any portion of the Adjusted ECF Amount attributed to a Foreign Subsidiary, as applicable, the distribution of which by a Foreign Subsidiary to the Borrower or a Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary is prohibited or delayed by applicable local law. Any amount that is excluded from the calculation of Net Cash Proceeds or the Adjusted ECF Amount in accordance with this Section 2.12(e)(i) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) or 2.12(c) and may be deducted from any amounts otherwise due under Section 2.12(b) or 2.12(c), as applicable, so long, but only so long, as the applicable local law will not permit a distribution of those funds by the Foreign Subsidiary (the Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable by the applicable law to eliminate such limitations). Once the distribution of any of such affected Net Cash Proceeds or Adjusted ECF Amount, as applicable, is permitted under the applicable local law, the Borrower shall prepay the Term B Commitment Loans (not later than five (5) Business Days after such distribution is permitted) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(e)(ii) precludes such prepayment; and
(ii) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary, Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary or any portion of the Adjusted ECF Amount attributed to a Foreign Subsidiary, in each case, to the extent that the Borrower has determined in its reasonable judgment that the distribution of any of or all such items to the Borrower or any Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary would have any adverse tax consequence. Any amount that is excluded from the calculation of Net Cash Proceeds or the Adjusted ECF Amount in accordance with this paragraph 2.12(e)(ii) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) or 2.12(c) and may be deducted from any amounts otherwise due under Section 2.12(b) or 2.12(c). Once the Borrower determines in its reasonable judgment that a distribution of any of such affected Net Cash Proceeds or Adjusted ECF Amount , as applicable, would cease to result in adverse tax consequences, the Borrower shall prepay the Term Loans (not later than five (5) Business Days after such determination) by an amount equal to such portion of such affected amount , except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(e)(i) precludes such prepayment. Notwithstanding anything to the contrary in this Section 2.12, in no event shall the Borrower be required to repatriate cash of Non-Domestic Subsidiaries.
(f) If, on any Calculation Date, (i) the aggregate Dollar Equivalents of the aggregate outstanding principal amounts of Foreign Currency Loans exceeds an amount equal to 105% of the Foreign Currency Sublimit, the Borrower shall, without notice or demand, immediately repay such of the outstanding Foreign Currency Loans in an aggregate principal amount such that, after giving effect thereto, the aggregate Dollar Equivalents of the outstanding principal amounts of Foreign Currency Loans does not exceed the Foreign Currency Sublimit or (ii) the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments, and the Term Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments for four consecutive Business Days thereafter, then on such fourth Business Day thereafter, the Borrower shall, without notice or demand, immediately repay such of each Lenderthe outstanding Revolving Extensions of Credit in an aggregate principal amount such that, after giving effect thereto, the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) shall terminate in its entirety at 5:00 p.m., New York City time, on do not exceed the Closingupon funding on the Amendment No.1Total Revolving Commitments.
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Mandatory Prepayments. (a) If In the event of any Indebtedness shall be incurred or issued by any Group Member after termination of all the Closing Date (other than Excluded Indebtedness)Revolving Credit Commitments, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied Borrower shall, on the date of such incurrence termination, repay or issuance toward the prepayment prepay all its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans and replace all outstanding Letters of Credit. If as a result of any partial reduction of the Term Revolving Credit Commitments the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment after giving effect thereto, then the Borrower shall, on the date of such reduction, repay or prepay Revolving Credit Borrowings or Swingline Loans as set forth (or a combination thereof) and/or replace outstanding Letters of Credit in Section 4.2(d)an amount sufficient to eliminate such excess.
(1b) If on any date any Group Member Loan Party shall receive Net Cash Proceeds from any Asset Sale Sales or Recovery Event Events in an aggregate amount greater than $2,000,000 in any fiscal year of the Borrower then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of all such Net Cash Proceeds shall be applied on within five Business Days after such date toward the prepayment of the Term to prepay outstanding Loans as set forth in accordance with Section 4.2(d2.13(e); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 in any fiscal year of the Borrower 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 as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionpayment.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply No later than the ECF Percentage of the excess, if any, earlier of (i) Excess Cash Flow for 90 days after the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option end of each fiscal year of the Borrower, commencing with the fiscal year ending on or prior such Excess Cash Flow Application DateDecember 31, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date 2005, and (an “Excess Cash Flow Application Date”ii) no later than ten (10) days after the date on which the financial statements referred with respect to such period are delivered pursuant to Section 5.4(a), the Borrower shall prepay outstanding Loans in accordance with Section 7.1(a2.13(e) in an aggregate principal amount equal to 50% of Excess Cash Flow for the fiscal year then ended; provided, however, that in the event the Leverage Ratio at the end of the Borrower with respect such fiscal year was less than 3.5 to which 1.00 no such prepayment is made are required to shall be delivered to the Lendersrequired.
(d) Amounts to be applied in connection with prepayments made In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance of Disqualified Preferred Stock or the issuance or other disposition of Indebtedness for money borrowed (or any similar transaction evidenced by bonds, debentures, notes or similar instruments) of any Loan Party or any subsidiary of a Loan Party (other than Disqualified Preferred Stock or Indebtedness for money borrowed (or any similar transaction evidenced by bonds, debentures, notes or similar instruments) permitted pursuant to this Section 4.2 6.1, except for Indebtedness incurred under Section 6.1(p) for which a mandatory prepayment shall be applied required to the prepayment extent such Indebtedness exceeds $25,000,000 at any time), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of the Term 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 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.13(e).
(e) The TotalAdditional Mandatory prepayments of outstanding Term B Commitment (Loans under this Agreement shall be allocated ratably between the Term Loans and the Other Term Loans, if any, and shall be applied first, in chronological order to the installments of principal in respect of the Term Loans and Other Term Loans scheduled to be paid within 12 months after such mandatory prepayment and second, pro rata against the remaining scheduled installments of principal due in respect of the Term Loans and Other Term Loans under Section 2.11. Upon the prepayment in full of all Term Loans, mandatory prepayments shall be applied to prepay Revolving Loans to the full extent thereof and to permanently reduce the Revolving Credit Commitments by the amount of such prepayment.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each Lenderprepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three days prior written notice of such prepayment. Each notice of prepayment shall terminate in its entirety at 5:00 p.m.specify the prepayment date, New York City timethe Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.15, on the Closingupon funding on the Amendment No.1but shall otherwise be without premium or penalty.
Appears in 1 contract
Sources: Credit Agreement (Knoll Inc)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within five Business Days following such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, in any fiscal year of the Borrower, an amount equal to 5% of Consolidated Total Assets as of the last day of the Borrower’s immediately preceding fiscal year, and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding Loans; provided, further, that, notwithstanding the foregoing, the Borrower shall not be required to prepay the Term Loans in accordance with this paragraph (b) except to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any from all Asset Sale Sales which have not been so applied equals or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to exceeds $20,000,000 in the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionaggregate.
(c) The If, for any fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2006, there shall be Excess Cash Flow and the Consolidated Leverage Ratio as of the last day of such fiscal year is greater than or equal to 2.50 to 1.00, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts If on any Calculation Date, the Total Revolving Extensions of Credit exceed 105% of the Total Revolving Commitments or the Alternative Currency LC Exposure exceeds 105% of the Alternative Currency LC Commitment, the Borrower shall, without notice or demand, within three Business Days after such Calculation Date, prepay the Revolving Loans (or, if no Revolving Loans remain outstanding, cash collateralize Letters of Credit in a manner satisfactory to be applied the Administrative Agent) in connection with prepayments made an aggregate amount such that, after giving effect thereto, the Total Revolving Extensions of Credit do not exceed the Total Revolving Commitments and the Alternative Currency LC Exposure does not exceed the Alternative Currency LC Commitment.
(e) The application of any prepayment of Loans pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid and shall 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.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Mandatory Prepayments. (a) If any Indebtedness (including Credit Agreement Refinancing Debt, but excluding any other Indebtedness permitted to be incurred in accordance with Section 7.2) shall be incurred or issued by any a Group Member after Member, the Closing Date (other than Excluded Indebtedness), Borrower shall pay an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on of such Indebtedness within three Business Days of the date of such incurrence or issuance toward receipt thereof to the prepayment of Administrative Agent to be applied to the Term Loans as set forth in accordance with clause (g) of this Section 4.2(d)2.12.
(1b) If on any date any Group Member shall for its own account receive Net Cash Proceeds in excess (but only to the extent of such excess) of $7.5 million from any individual (or series of related transactions constituting an) Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, the Borrower shall pay an amount equal to 100% of such Net Cash Proceeds shall (the “Net Cash Proceeds Payment Percentage”) within five Business Days of the date of receipt thereof to the Administrative Agent to be applied on such date toward the prepayment of to the Term Loans as set forth in accordance with clause (g) of this Section 4.2(d)2.12; provided thatprovided, that notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, 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 toward to the Term Loans in accordance with clause (g) of this Section 2.12 and (ii) on the date (the “Trigger Date”) that is six months 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 Term Loans in accordance with clause (g) of this Section 2.12; provided, further, that the applicable Net Cash Proceeds Payment Percentage shall be reduced to (a) 75% if the First Lien Leverage Ratio (at the time of payment) is equal to or less than 4.20:1.00, and (b) 50%, if the First Lien Leverage Ratio (at the time of payment) is equal to or less than 3.70:1.00.
(c) Within five Business Days after financial statements have been delivered pursuant to Section 6.1(a) (commencing with the financial statements to be delivered with respect to the fiscal year ending January 31, 2020), the Borrower shall pay to the Administrative Agent to be applied to the Term Loans in accordance with clause (g) of this Section 2.12 an amount equal to the (i) the Excess Cash Flow Percentage of Excess Cash Flow for such preceding fiscal year minus (ii) at the election of the Borrower, the sum of (without duplication of any amounts so deducted from Excess Cash Flow in any prior or subsequent years) (x) the aggregate principal amount of any Loans voluntarily prepaid pursuant to Section 2.11 prior to such date (but solely, in the case of the prepayment of any Revolving Loans, to the extent accompanied by a permanent reduction in the relevant Revolving Commitments), (y) the aggregate principal amount of any Parity Lien Debt voluntarily prepaid prior to such date (but solely, in the case of the prepayment of any revolving loans, to the extent accompanied by a permanent reduction in the relevant revolving commitments) and (z) the amount of cash paid by Holdings or any Group Member in connection with any purchase or assignment made in accordance with Section 10.6(c) of this Agreement (including in connection with any Dutch auction) prior to such date, in each case of clauses (x), (y) and (z) to the extent that the relevant prepayments were not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of the Group Members; provided, that if the difference between clauses (i) and (ii) for any fiscal year is less than or equal to $5 million, then no payment shall be required under this clause (c) for such fiscal year.
(d) The Borrower shall immediately prepay first, the Swingline Loans, and second, the Revolving Loans to the extent necessary so that the Revolving Extensions of Credit of all Lenders shall not at any time exceed the Revolving Commitments then in effect. To the extent that after such prepayments, the Revolving Extensions of Credit of all Lenders exceed the Revolving Commitments then in effect, the Borrower shall Cash Collateralize outstanding L/C Obligations to eliminate such excess.
(e) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Obligations required to be made pursuant to clauses (a), (b) and (c) of this Section 2.12 (including the amount of such prepayment so required) by 1:00 P.M. at least three (3) Business Days prior to the date of such prepayment. The Administrative Agent will promptly notify each applicable Lender of the contents of the Borrower’s prepayment notice and of such applicable Lender’s pro rata share of the prepayment. Each appropriate Lender may reject all or a portion of its share of any mandatory prepayment made pursuant to clauses (a), (b) and (c) (such declined amounts, the “Declined Proceeds”) of Term Loans by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 P.M. two (2) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower (“Retained Declined Proceeds”).
(f) If, at any time the Borrower would be required to prepay the Term Loans pursuant to clause (b) or (c) above, the Borrower is required to prepay, repurchase, or offer to prepay or repurchase any Parity Lien Debt (other than any Credit Agreement Refinancing Term Loans) pursuant to the terms of the documentation governing such Indebtedness in connection with the circumstances described in clause (b) or (c), as applicable (such Indebtedness, the “Other Applicable Indebtedness”), then the Borrower may apply the amounts required to be prepaid or used to repurchase on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and the Other Applicable Indebtedness at such time; provided, that the portion of such prepayment allocated to any Other Applicable Indebtedness shall not exceed the amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans as set forth and the prepayment or repurchase of the Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to such clause (b) or (c) shall be reduced accordingly on a dollar-for-dollar basis; provided, that to the extent the holders thereof decline to have such Other Applicable Indebtedness prepaid or repurchased, the declined amount shall promptly be applied to prepay the Term Loans in Section 4.2(d)accordance with the terms hereof.
(g) Except as otherwise provided in any Incremental Agreement, any Extension Agreement or any Refinancing Agreement for less than ratable prepayment of any Incremental Term Facility, Extended Term Facility or Credit Agreement Refinancing Debt, each prepayment of Term Loans pursuant to clauses (a), (b) and (c) of 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 any Permitted Refinancing Debt and/or any Incremental Term Facility incurred for the purpose of refinancing or replacing such Term Loans shall be applied to the applicable Class of Term Loans being refinanced or replaced). With respect to each Class of Term Loans, all prepayments accepted under this Section 2.12 shall be applied (1) first, to accrued and unpaid interest of the Term Loans and (2) next, against the remaining scheduled installments of principal due in respect of such Class of Term Loans as directed in writing by the Borrower (or, in the absence of direction from the Borrower, to the remaining scheduled amortization payments in respect of such Class of Term Loans in direct order of maturity), and each such prepayment shall be paid to the Term Lenders of such Class pro rata according to the respective amounts due to such Term Lenders. The amount of such mandatory prepayments shall be applied first to the then outstanding Term Loans that are ABR Loans and then to the then outstanding Term Loans that are Eurodollar Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21.
(h) Notwithstanding the foregoingany other provisions of this Section 2.12, to the extent that (and for so long asi) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and a “Foreign Disposition”), the Net Cash Proceeds of any Recovery Event from a Foreign Subsidiary (a “Foreign Recovery Event”), or Excess Cash Flow attributable to a “Specified Asset Sale”) are Foreign Subsidiary is prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary (and, if applicable, its parent entities) to use commercially reasonable efforts to take actions required by the applicable local Law to permit such repatriation) or (ii) the Borrower has determined in good faith that repatriation of organization any of or all the Borrower, the calculation of Net Cash Proceeds shall of any Foreign Disposition, any Foreign Recovery Event or Excess Cash Flow would have a material adverse tax cost consequence (including any withholding tax, and taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) to Holdings or a Group Member with respect to such Net Cash Proceeds or Excess Cash Flow, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be reduced by the amount so prohibited or delayedrequired to prepay Term Loans; provided, that once the Borrower agrees to use commercially reasonable efforts to take actions required by the applicable local Law to permit such repatriation of or to avoid or minimize such restrictions and limitations during the one (1) year period immediately following the date such prepayment under this Section 2.12 was otherwise required to be made; provided further that if and to the extent any such affected repatriation ceases to be prohibited or delayed by the applicable local Law or such material adverse tax cost consequence ceases to exist, in each case, at any time during the one (1) year period immediately following the date such prepayment under this Section 2.12 was otherwise required to be made, such repatriation will be promptly effected and such repatriated Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each or Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of will be promptly (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth and in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no any event not later than ten five (105) days Business Days after the date on which the financial statements referred to in Section 7.1(asuch repatriation) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts offered to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans in accordance with Section 4.8 and first, pursuant to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest 2.12 to the date of such prepayment on the amount prepaidextent provided herein.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Credit Agreement (Mavenir Private Holdings II Ltd.)
Mandatory Prepayments. (a) If any Capital Stock or Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (other than excluding any Excluded IndebtednessIssuance and any Indebtedness permitted by Section 7.2(a) through (s), ) an amount equal to the Equity Sweep Percentage of such Net Cash Proceeds in the case of Capital Stock and 100% of the Net Cash Proceeds thereof in the case of Indebtedness shall be applied by the Borrower on the date of receipt thereof by such incurrence or issuance Group Member toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e). 1 Please indicate the length of the initial LIBOR period ▇▇▇▇ is requesting.
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be have been timely delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied by or on behalf of the Borrower promptly but no later than the end of the fiscal month following the fiscal month in which such date Net Cash Proceeds are received) toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e); provided that, that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to Reinvestment Notices shall not exceed $150,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for (i) the period from the first anniversary of the Closing Date through the end of the then current fiscal year of the Borrower or (ii) any fiscal year of the Borrower thereafter, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Following the establishment of any Receivable Financing Transaction by the Borrower or any of its Domestic Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be promptly applied by or on behalf of the Borrower toward the prepayment of the Loans as set forth in Section 2.9(e).
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.9 shall be applied to made ratably among the prepayment Lenders of the Term Loans in accordance with Loans. The application of any prepayment made pursuant to this Section 4.8 and 2.9 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid, the Call Premium owing pursuant to Section 2.6(a) (if applicable) and, if a Eurodollar Loan is prepaid on any day other the last day of the Interest Period applicable thereto, the Borrower shall also pay amounts owing pursuant to Section 2.18.
(ef) The TotalAdditional Term B Commitment Notwithstanding anything to the contrary in this Agreement, Section 2.9 shall not apply, and no mandatory repayment of Loans shall be required to be made pursuant hereto, until after the First Lien Loans (and accrued interest thereon) have been repaid in full and any letters of credit outstanding under the Term Commitments First Lien Credit Agreement and any outstanding First Lien Specified Letters of Credit have been cash collateralized, in each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on case to the Closingupon funding on extent required under the Amendment No.1First Lien Credit Agreement and the documentation for the First Lien Specified Letters of Credit.
Appears in 1 contract
Mandatory Prepayments. (a) 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 Holdings or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)of its Restricted Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on not later than one Business Day after the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans or New Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member Loan Party shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on not later than five Business Days after such date toward the prepayment of the Term Loans or New Term Loans as set forth in Section 4.2(d2.12(d); provided that, that notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans or New Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward and (y) on the prepayment of date (the “Trigger Date”) that is one year after any such Reinvestment Prepayment Date, the Term Loans or New Term Loans shall be prepaid as set forth in Section 4.2(d).
(22.12(d) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the an amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such reductionTrigger Date.
(c) The Borrower Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of Holdings commencing with the fiscal year ending September 30, 2013, there shall be Excess Cash Flow, Holdings shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of an amount equal to (i) the Excess Cash Flow for the related Percentage of such Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such Excess Cash Flow Payment Period or, at fiscal year to the option extent accompanied by permanent optional reductions of the BorrowerRevolving Commitments and all optional prepayments of the Term Loans or New Term Loans during such fiscal year, on or prior in each case other than to the extent any such Excess Cash Flow Application Dateprepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the Term Loans or New Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans or New Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans or New Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment If as of the last Business Day of each calendar month (computed by the Administrative Agent using the current exchange rate as of such Business Day and promptly notified to the Multicurrency Revolving Lenders and the Borrower) the Dollar Amount of the aggregate outstanding principal amount of the Revolving Loans shall exceed 105% of the aggregate Revolving Commitments, the Borrower shall, within five Business Days after the Borrower’s receipt of such notice, prepay Multicurrency Revolving Loans in such amounts as shall be necessary so that after giving effect thereto the aggregate outstanding principal amount of such Revolving Loans does not exceed the Revolving Commitments as of such Business Day.
(f) Notwithstanding anything to the contrary in Sections 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment pursuant to this Section 2.12 that is allocated to any Tranche of New Term Commitments Loans (such amount for such Class, the “Prepayment Amount”, and each such Class, an “Applicable Class”), at any time when Term Loans remain outstanding, the Borrower will, in lieu of each Lenderapplying such Prepayment Amount to the Applicable Class of Term Loans as provided in paragraph (d) shall terminate in its entirety at 5:00 p.m., New York City timeabove, on the Closingupon funding date specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each New Term Lender a notice substantially in the form of Exhibit L (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 New Term Lender a Prepayment Option Notice, which shall be in a form reasonably satisfactory to the Administrative Agent, and shall include an offer by the Borrower to prepay, on the Amendment No.1date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, each Applicable Class of Loans of such Lender by an amount equal to the portion of the Prepayment Amount for such Class indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Applicable Class of Term Loans. Each New Term Lender may reject all or a portion of its Prepayment Amount of the Applicable Class by providing written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York time) one Business Day after such New Term Lender’s receipt of the Prepayment Option Notice (which notice shall specify the principal amount of the Prepayment Amount for each Applicable Class to be rejected by such Lender); provided that any New Term Lender’s failure to so reject such Prepayment Amount for any Applicable Class shall be deemed an acceptance by such New Term Lender of such Prepayment Option Notice for such Applicable Class and the amount to be prepaid in respect of New Term Loans of such Applicable Class held by such New Term Lender. On the Mandatory Prepayment Date, the Borrower shall (i) pay to the relevant New Term Lenders the aggregate amount necessary to prepay that portion of the outstanding New Term Loans of the Applicable Class in respect of which such New Term Lenders have (or are deemed to have) accepted prepayment as described above and (ii) prepay outstanding Term Loans in an aggregate amount equal to the amounts declined by New Term Lenders as described above; provided that, upon the making of such prepayments, any amount remaining unapplied (i.e., after the payment in full of the Term Loans) shall be returned to the Borrower.
Appears in 1 contract
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within five Business Days following such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, in any fiscal year of the Borrower, an amount equal to 5% of Consolidated Total Assets as of the last day of the Borrower’s immediately preceding fiscal year, and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding Loans; provided, further, that, notwithstanding the foregoing, the Borrower shall not be required to prepay the Term Loans in accordance with this paragraph (b) except to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any from all Asset Sale Sales which have not been so applied equals or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to exceeds $20,000,000 in the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionaggregate.
(c) The If, for any fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2007, there shall be Excess Cash Flow and the Consolidated Leverage Ratio as of the last day of such fiscal year is greater than or equal to 2.75 to 1.00, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage 50% of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts If on any Calculation Date, the Total Revolving Extensions of Credit exceed 105% of the Total Revolving Commitments or the Alternative Currency LC Exposure exceeds 105% of the Alternative Currency LC Commitment, the Borrower shall, without notice or demand, within three Business Days after such Calculation Date, prepay the Revolving Loans (or, if no Revolving Loans remain outstanding, cash collateralize Letters of Credit in a manner satisfactory to be applied the Administrative Agent) in connection with prepayments made an aggregate amount such that, after giving effect thereto, the Total Revolving Extensions of Credit do not exceed the Total Revolving Commitments and the Alternative Currency LC Exposure does not exceed the Alternative Currency LC Commitment.
(e) The application of any prepayment of Loans pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1under
Appears in 1 contract
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1b) If on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within five Business Days following such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, in any fiscal year of the Borrower, an amount equal to 5% of Consolidated Total Assets as of the last day of the Borrower’s immediately preceding fiscal year, and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding Loans; provided, further, that, notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are shall not be required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of prepay the Term Loans in accordance with this paragraph (b) except to the extent that the Net Cash Proceeds from all Asset Sales which have not been so applied equals or exceeds $20,000,000 in the aggregate.
(c) If on any Calculation Date, the Total Revolving Extensions of Credit exceed 105% of the Total Revolving Commitments or the Alternative Currency LC Exposure exceeds 105% of the Alternative Currency LC Commitment, the Borrower shall, without notice or demand, within three Business Days after such Calculation Date, prepay the Revolving Loans (or, if no Revolving Loans remain outstanding, cash collateralize Letters of Credit in a manner satisfactory to the Administrative Agent) in an aggregate amount such that, after giving effect thereto, the Total Revolving Extensions of Credit do not exceed the Total Revolving Commitments and the Alternative Currency LC Exposure does not exceed the Alternative Currency LC Commitment.
(d) The application of any prepayment of Loans pursuant to this Section 4.8 and 2.11 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid 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.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Mandatory Prepayments. (a) If Promptly upon receipt by the Borrower or any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of its Subsidiaries of the Net Cash Proceeds thereof shall be applied on the date from any sale or other transfer or disposition of such incurrence or issuance toward the prepayment any of the Subject Assets or Moveable Assets, the Borrower shall prepay the Term Loans as set forth Loan in accordance with Section 4.2(d).
(13.3(d) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless of this Agreement in a Reinvestment Notice shall be delivered in respect thereof, an principal amount equal to 100% of such Net Cash Proceeds shall be applied Proceeds.
(b) Commencing on such date toward March 31, 2004 and on each March 31 thereafter subject to the prepayment of the Term Loans as minimum excess availability requirements set forth in the Revolving Credit Agreement, the Borrower shall prepay the Term Loan in accordance with Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an 3.3(d) of this Agreement in a principal amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment 50% of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excessFlow, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower ending immediately preceding each such March 31. Notwithstanding any of the above to the contrary, if the Borrower does not have sufficient availability under the Revolving Credit Agreement to obtain an advance thereunder for purposes of making 100% of the prepayment described herein on March 31 of any applicable calendar year, such that giving effect to such advance, the minimum excess availability requirements set forth in the Revolving Credit Agreement are not satisfied, then (i) the Borrower shall make a prepayment on March 31 in an amount equal to the amount the Borrower may borrow under the Revolving Credit Agreement for such purpose in accordance with respect such requirements, and (ii) on the Business Day immediately following any day thereafter on which the Borrower has sufficient availability under the Revolving Credit Agreement to which obtain an advance thereunder in accordance with such requirements for purposes of making all or a portion of the remainder of such prepayment described herein, the Borrower shall make a payment hereunder in the amount of such availability until the prepayment described herein is made are required paid, in full.
(c) Subject to be delivered any minimum excess availability requirements set forth in the Revolving Credit Agreement, if the aggregate amount of the initial commitment obtained by the Borrower pursuant to the LendersRevolving Credit Agreement and the Maximum Borrowing Base shall both exceed $150,000,000, the Borrower shall, on the date hereof, prepay the Term Loan in accordance with Section 3.3(d) of this Agreement in a principal amount equal to 100% of the lesser of (i) the amount by which the initial commitment obtained by the Borrower under the Revolving Credit Agreement exceeds $150,000,000 or (ii) the amount by which the Maximum Borrowing Base exceeds $150,000,000.
(d) Amounts to be applied in connection with prepayments Any prepayment made pursuant to this under Section 4.2 3.3(a), Section 3.3(b) or Section 3.3(c) shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by (i) include accrued interest from the last interest payment date (per Section 2.4) to the date of such prepayment on the principal amount prepaid.
, (eii) The TotalAdditional Term B Commitment not be subject to any minimum payment provisions contained in this Agreement and (and iii) be in addition to the scheduled payments of the Term Commitments Loan required under Section 2.3 of each Lenderthis Agreement. Any prepayment made under Section 3.3(a) and Section 3.3(b) shall terminate be applied to the unpaid principal installments of the Term Loan in its entirety at 5:00 p.m., New York City time, on inverse order of maturity. Any prepayment made under Section 3.3(c) shall reduce the Closingupon funding on amount of the Amendment No.1Term Loan subject to the scheduled amortization set forth in Section 2.3 of this Agreement. Nothing in this Section 3.3 shall be deemed to permit any violation of any other provision contained in this Agreement.
Appears in 1 contract
Sources: Term Loan Agreement (Pillowtex Corp)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Company or issued by any Group Member after the Closing Date of its Restricted Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.02), then not later than the next Business Day following such incurrence, the Term Loans shall be prepaid by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)incurrence.
(1b) If on any date following the Closing Date the Company or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice the Company intends to acquire or repair assets useful in the business of, or otherwise reinvest in, the Company and its Restricted Subsidiaries with all or any portion of the relevant Net Cash Proceeds, not later than the fifth Business Day following the receipt by the Company or such Subsidiary of such Net Cash Proceeds, the Term Loans shall be delivered in respect thereof, prepaid by an amount equal to 100% the amount of such Net Cash Proceeds; provided that (i) any such prepayment shall only be required with the aggregate amount of Net Cash Proceeds shall be applied on such date toward the prepayment from any Asset Sale or Recovery Event received in any fiscal year of the Term Loans as set forth Company in Section 4.2(d); provided thatexcess of $20,000,000, and (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date, 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 shall be applied toward and (iii) the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation aggregate amount of Net Cash Proceeds that the Company may apply to the acquisition or repair of assets useful in the business of, or otherwise reinvest in, the Company and its Restricted Subsidiaries, in lieu of prepaying the Term Loans following the Closing Date shall be reduced by not exceed $150,000,000 (excluding amounts specified in the amount so prohibited or delayed; providedpreceding clause (i)), provided however that once such repatriation of any such affected Net Cash Proceeds is permitted under from a Specified Disposition shall not be subject to any reinvestment rights and shall instead be applied in its entirety to prepay the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionTerm Loans.
(c) The Borrower shallNot 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 each the relevant Excess Cash Flow Application Date, apply the Term Loans shall be prepaid by an amount equal to (x) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period orminus (y) voluntary payments of Term Loans (including Incremental Term Loans) under Section 2.11, at Credit Agreement Refinancing Debt that is secured on a pari passu basis with the option of Obligations and Revolving Credit Loans (to the Borrowerextent accompanied by a permanent commitment reduction), on in each case during such fiscal year or following such fiscal year and prior to such Excess Cash Flow Application DateDate to the extent not previously deducted pursuant to this clause (y) in any prior period, toward but only to the prepayment extent that such prepayments are not made with the proceeds of the Term Loans as set forth in Section 4.2(dlong-term Indebtedness (other than revolving Indebtedness). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days five Business Days after the earlier of the date on which the financial statements of the Company referred to in Section 7.1(a) 6.01(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, (i) are required to be delivered to the LendersLenders and (ii) are actually delivered.
(e) In the event of any termination of all the Revolving Credit Commitments, each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and each Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the sum of (i) the aggregate Committed Credit Exposure of all the Revolving Credit Lenders plus (ii) the outstanding aggregate principal amount or Assigned Dollar Value of all Competitive Loans made by all the Revolving Credit Lenders plus (iii) 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 and (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 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) Amounts 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 material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) such repatriation or any distribution of the relevant amounts would result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in connection 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 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 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 Proceeds received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(g) All prepayments made pursuant to this Section 4.2 2.12 shall be subject to Section 2.21, but shall otherwise be without premium or penalty, and shall be accompanied by accrued interest on the principal amount to be repaid to but excluding the date of payment.
(h) Each prepayment of Term Loans pursuant to this Section 2.12 shall be applied to the prepayment remaining scheduled installments of the Term Loans as directed by the Company and in the absence of such direction, to the remaining scheduled installments of the Term Loans in accordance with direct order of maturity.
(i) The Company shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 4.8 and first2.12, to Base Rate Loans and, second, to Eurodollar Loansa certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.
(j) With respect to any mandatory prepayments of the Term Loans under this Section 4.2 shall be accompanied 2.12 (other than Section 2.12(a), 2.12(b) (only with respect to a Specified Disposition) and 2.12(c)), each Term Loan Lender may reject all or a portion of its Term Loan Percentage, or other applicable share provided for under this Agreement, of such mandatory prepayment of Term Loans (such declined amounts, the “Declined Proceeds”) by accrued interest providing written notice (each, a “Rejection Notice”) to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (Administrative Agent and the Term Commitments of each Lender) shall terminate in its entirety at Company no later than 5:00 p.m., New York City time, on two Business Days after the Closingupon funding on date of such Lender’s receipt of notice from the Amendment No.1Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Loan Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Subject to the terms of this Agreement, any Declined Proceeds remaining shall be retained by the Company.
Appears in 1 contract
Sources: Credit Agreement (Harsco Corp)
Mandatory Prepayments. (a) In the event of a Qualifying IPO, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans as set forth in Section 2.12(e).
(b) If any Indebtedness shall be incurred or issued by any Group Member after (excluding any Indebtedness permitted in accordance with Section 7.2, including in such excluded Indebtedness the Closing Date (other than Excluded IndebtednessSenior Subordinated Notes and any Guarantee Obligations in respect thereof), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(e); provided thatprovided, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Borrower commencing with the fiscal year ending December 31, 2007 there shall be Excess Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the BorrowerFlow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during Percentage of such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(e). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b). The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 (except in the case of Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Mandatory Prepayments. (ai) If, on any date, the SUM of (A) the aggregate unpaid principal amount of all Revolving Loans then outstanding, PLUS (B) all of the Letter of Credit Obligations then outstanding (to the extent not Cash Collateralized pursuant to clause (ii) below or as provided for in Section 3.7) 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.
(ii) If, on any date, the aggregate amount of all Letter of Credit Obligations then outstanding shall exceed the Letter of Credit Commitment then in effect, the Borrower shall Cash Collateralize on such date such Letter of Credit Obligations in an amount equal to such excess.
(iii) If, on any date on or prior to the Incremental Commitment Termination Date, the aggregate unpaid principal amount of all Incremental Loans then outstanding shall exceed the Aggregate Incremental Commitment then in effect, the Borrower shall immediately prepay principal of the Incremental Loans in the amount of such excess.
(i) If on any Indebtedness date the Borrower or any of its Subsidiaries shall be incurred receive Net Cash Proceeds from any Asset Sale or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)Recovery Event, then an amount equal to 100% of the Net Cash Proceeds thereof from such Asset Sale or Recovery Event shall be applied on the date of such incurrence or issuance toward the prepayment upon receipt to prepay principal of the outstanding Term Loans and (if applicable) Incremental Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member hereinafter provided; provided, however, that the Borrower and its Subsidiaries shall receive be required to apply Net Cash Proceeds received from any Asset Sale or Recovery Event thentowards prepayment of principal as provided above only (A) if any Material Event of Default shall be continuing at the time of the receipt of such Net Cash Proceeds, unless or (B) if and to the extent that such Net Cash Proceeds, when added to the aggregate amount of all other Net Cash Proceeds received from Asset Sales or Recovery Events in the same Fiscal Year, shall exceed $7,500,000; and provided, further, that the requirements for mandatory prepayment set forth above in this clause (i) shall be reduced if and to the extent that the Borrower elects, as hereinafter provided, to cause all or part of such Net Cash Proceeds to be reinvested by the Borrower or by one or more of its Subsidiaries in Reinvestment Assets (a "REINVESTMENT ELECTION"). The Borrower may exercise the Reinvestment Election with respect to any Asset Sale or Recovery Event only if (1) no Material Event of Default shall be continuing at the time of such Asset Sale or Recovery Event, and (2) the Borrower delivers a Reinvestment Notice with respect to such Asset Sale or Recovery Event to the Administrative Agent not later than the fifth Business Day following the date of such Reinvestment Event, with such Reinvestment Election being effective with respect to Net Cash Proceeds from such Reinvestment Event equal to the Anticipated Reinvestment Amount specified in such Reinvestment Notice.
(ii) Nothing in this paragraph (b) shall be delivered construed as a consent for, or be deemed to permit, any Asset Sale not otherwise permitted by this Agreement.
(iii) On the Reinvestment Prepayment Date with respect to any Reinvestment Election, an amount equal to the Reinvestment Prepayment Amount, if any, for such Reinvestment Election shall be applied as a mandatory prepayment of principal of the outstanding Term Loans and (if applicable) Incremental Loans as hereinafter provided.
(c) On each Excess Cash Flow Application Date (commencing with the Excess Cash Flow Application Date falling on December 31, 2000), an amount equal to 50% of the Consolidated Excess Cash Flow for the Fiscal Year last ended shall be applied as a mandatory prepayment of principal of the outstanding Term Loans and (if applicable) Incremental Loans as hereinafter provided; provided, however, that if the Consolidated Leverage Ratio as of the last day of such Fiscal Year is (i) equal to or less than 3.00:1.00, but greater than 2:00:1.00, then only an amount equal to 25% of the Consolidated Excess Cash Flow for such Fiscal Year shall be required to be so applied, or (ii) equal to or less than 2.00:1.00, then no payment in respect thereofof the Consolidated Excess Cash Flow for such Fiscal Year shall be required pursuant to this Section 2.7(c).
(d) If (i) the Borrower or any of its Subsidiaries shall at any time receive Net Issuance Proceeds from the issuance or Sale of Equity Interests of the Borrower, and (ii) the Consolidated Leverage Ratio is greater than 2.50:1.00 as of the then most recent Covenant Determination Date prior to such issuance or Sale of Equity Interests, then, on the first Business Day after the receipt by the Borrower or by any of its Subsidiaries of such Net Issuance Proceeds, the Borrower shall prepay principal of the outstanding Term Loans and (if applicable, as hereinafter provided) Incremental Loans in an amount equal to the lesser of (A) the amount of such Net Issuance Proceeds, or (B) the amount (if any) of principal of the outstanding Term Loans and (if applicable) Incremental Loans that would need to be prepaid on such Business Day in order to cause the Consolidated Leverage Ratio, determined as of the most recent Covenant Determination Date on a Pro Forma Basis after giving effect to any such issuance or Sale of Equity Interests and any such prepayment, to be not greater than 2.50:1.00.
(e) On the date of the receipt thereof by the Borrower or by any of its Subsidiaries, an amount equal to 100% of such the Net Cash Issuance Proceeds from the issuance or sale of any Indebtedness (other than Indebtedness permitted to be incurred under Section 8.2) shall be applied on such date toward the as a mandatory prepayment of principal of the outstanding Term Loans and (if applicable) Incremental Loans as set forth hereinafter provided.
(f) Nothing in paragraph (d) or paragraph (e) of this Section 4.2(d)2.7 shall be construed as a consent for, or be deemed to permit, any issuance or Sale of Equity Interests or Indebtedness not otherwise permitted by this Agreement.
(g) The Borrower shall pay, together with each principal prepayment under this Section 2.7, accrued interest on the amount prepaid and any amounts required pursuant to Section 4.4. Any prepayments pursuant to this Section 2.7 made on any day other than an Interest Payment Date for any Loan shall be applied: FIRST, to any Base Rate Loans then outstanding; and, THEN, to Eurodollar Loans with the shortest Interest Periods remaining, provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any as no Event of or all of Default shall then be continuing, the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery EventAdministrative Agent shall, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to upon the jurisdiction of organization request of the Borrower, apply any such prepayments to Eurodollar Loans only on the calculation last day of Net Cash Proceeds shall be reduced by each of the amount so prohibited or delayed; providedrespective Interest Periods relating thereto, that once and, until such repatriation application of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Lawprepayments, the Group Members Administrative Agent shall be treated as having received Net Cash Proceeds equal to hold the amount of such reductionthereof as cash Collateral for the Obligations upon the terms contained in the Collateral Documents.
(ch) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the Each prepayment of the Term Loans as set forth required pursuant to this Section 2.7 shall be applied to the remaining scheduled installments of Term Loans pursuant to Section 2.8(a) on a pro rata basis in Section 4.2(d)accordance with the then remaining unpaid amounts of such remaining installments. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are Incremental Loans required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.7 after the Incremental Commitment Termination Date shall be applied to the prepayment remaining scheduled installments of the Term Incremental Loans pursuant to Section 2.8(c) on a pro rata basis in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. the then remaining unpaid amounts of such remaining installments.
(i) Each prepayment of principal of the outstanding Term Loans under this and (if applicable, as hereinafter provided) Incremental Loans required pursuant to Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e2.7(b), 2.7(c), 2.7(d) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1or 2.7
Appears in 1 contract
Mandatory Prepayments. (a) If any Capital Stock or Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (other than excluding any Excluded IndebtednessIssuance and any Indebtedness permitted by Section 7.2(a) through (s), ) an amount equal to the Equity Sweep Percentage of such Net Cash Proceeds in the case of Capital Stock and 100% of the Net Cash Proceeds thereof in the case of Indebtedness shall be applied by the Borrower on the date of receipt thereof by such incurrence or issuance Group Member toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be have been timely delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied by or on behalf of the Borrower promptly but no later than the end of the fiscal month following the fiscal month in which such date Net Cash Proceeds are received) toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e); provided that, that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing prepayment requirement pursuant to Reinvestment Notices shall not exceed $150,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for (i) the period from the first anniversary of the Closing Date through the end of the then current fiscal year of the Borrower or (ii) any fiscal year of the Borrower thereafter, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.9(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Following the establishment of any Receivable Financing Transaction by the Borrower or any of its Domestic Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be promptly applied by or on behalf of the Borrower toward the prepayment of the Loans as set forth in Section 2.9(e).
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.9 shall be applied to made ratably among the prepayment Lenders of the Term Loans in accordance with Loans. The application of any prepayment made pursuant to this Section 4.8 and 2.9 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepaid and, if a Eurodollar Loan is prepaid on any day other the last day of the Interest Period applicable thereto, the Borrower shall also pay amounts owing pursuant to Section 2.18.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Credit Agreement (Lear Corp)
Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded Indebtednessany Credit Agreement Refinancing Facilities or Permitted External Refinancing Debt)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Subject to Section 2.12(e), if on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, which, together with the Net Cash Proceeds received from all other Asset Sales or Recovery Events in such fiscal year exceed $40,000,000, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds in excess of $40,000,000, and an amount equal to all Net Cash Proceeds received thereafter in such fiscal year, shall be applied on such date of receipt toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders[Reserved].
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans2.18(b). Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding any provision to the contrary in this Agreement, the following amounts shall be excluded from the calculation of the amount of Net Cash Proceeds from any Asset Sale or Recovery Event, as applicable:
(i) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, as applicable, the distribution of which by a Foreign Subsidiary to the Parent Borrower or a Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary is prohibited or delayed by applicable local law. Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this Section 2.12(e)(i) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b), so long, but only so long, as the applicable local law will not permit a distribution of those funds by the Foreign Subsidiary (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable law to eliminate such limitations). Once the distribution of any of such affected Net Cash Proceeds is permitted under the applicable local law, the Parent Borrower shall prepay the Term B Commitment Loans (not later than five (5) Business Days after such distribution is permitted) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(e)(ii) precludes such prepayment; and
(ii) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, in each case, to the extent that the Parent Borrower has determined in its reasonable judgment that the distribution of any of or all such items to the Parent Borrower or any Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary would have any adverse tax consequence (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable law to avoid any such adverse tax consequence). Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this paragraph 2.12(e)(ii) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b). Once the Parent Borrower determines in its reasonable judgment that a distribution of any of such affected Net Cash Proceeds would cease to result in adverse tax consequences, the Parent Borrower shall prepay the Term Loans (not later than five (5) Business Days after such determination) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(e)(i) precludes such prepayment. Notwithstanding anything to the contrary in this Section 2.12, in no event shall any Group Member be required to repatriate cash of Non-Domestic Subsidiaries to the United States.
(f) If, on any date, (i) the aggregate Dollar Equivalents of the sum of the aggregate outstanding principal amounts of Foreign Currency Loans and any outstanding L/C Obligations denominated in any L/C Foreign Currency exceeds an amount equal to 105% of the Foreign Currency Sublimit, the Borrowers shall, without notice or demand, immediately repay such of the outstanding Foreign Currency Loans and cash collateralize any outstanding Letters of Credit denominated in any L/C Foreign Currency in an aggregate principal amount such that, after giving effect thereto, the aggregate Dollar Equivalents of the outstanding principal amounts of Foreign Currency Loans does not exceed the Foreign Currency Sublimit or (ii) the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments, and the Term Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments for two consecutive Business Days thereafter, then on such second Business Day thereafter, the Borrowers shall, without notice or demand, immediately repay such of each Lenderthe outstanding Revolving Extensions of Credit and cash collateralize any outstanding Letters of Credit in an aggregate principal amount such that, after giving effect thereto, the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) shall terminate in its entirety at 5:00 p.m., New York City time, on do not exceed the Closingupon funding on the Amendment No.1Total Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Tempur Sealy International, Inc.)
Mandatory Prepayments. (a) If Subject to the Intercreditor Agreement, if any Indebtedness shall be issued or incurred by the Borrower or issued by any Group Member after the Closing Date (other than Excluded Indebtednessexcluding any Indebtedness incurred without violation of Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within three Business Days after the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(a).
(1b) If Subject to the Intercreditor Agreement, if on any date the Borrower or any Group Member Subsidiary Guarantor shall receive Net Cash Proceeds from (i) prior to the ABL Obligations Payment Date, any Asset Sale or Recovery Event with respect to Term Facility Priority Collateral or (ii) after the ABL Obligations Payment Date, any Asset Sale or Recovery Event with respect to any Collateral, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof within ten Business Days after receipt of such proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied on at the end of such date ten-Business Day period toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(a); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(a).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2021, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply (i) the ECF Percentage of the excess, if any, of (i) such Excess Cash Flow for the related Excess Cash Flow Payment Period and minus (ii) Voluntary Prepayments made the aggregate amount of all optional prepayments of the Loans during such Excess Cash Flow Payment Period or, at Fiscal Year or after the option end of such fiscal year bur prior to the Borrower, on or prior such Excess Cash Flow Application DateDate (other than to the extent that any such prepayment is funded with the proceeds of Indebtedness that, in accordance with GAAP, constitutes (or, when incurred, constituted) a long-term liability), toward the prepayment of the Term Loans as set forth in Section 4.2(d2.5(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days Business Days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower Fiscal Year with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Term Facility Credit Agreement
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Company or issued by any Group Member of its Subsidiaries after the Closing Date (excluding (i) the proceeds of a Permitted Receivables Financing, and (ii) any other than Excluded Indebtednesspermitted Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.13(d).
(1b) If on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereofthereof (or will be delivered concurrently with the next Compliance Certificate to be delivered pursuant to Section 6.2(b)), an amount equal to 100% the Applicable Prepayment Percentage of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.13(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.13(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower In the event that for any fiscal year of the Company (commencing with the first full fiscal year ending after the Closing Date), there shall be Excess Cash Flow, the Company shall, on each the relevant Excess Cash Flow Application Date, apply prepay Tranche B Term Loans in an aggregate amount equal to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period less (i) the aggregate amount of voluntary prepayments, redemptions and repurchases of (A) Term Loans (including Loans under Incremental Term Facilities), Incremental Equivalent Debt, Permitted Refinancing Indebtedness and any other Indebtedness permitted under Section 7.2, in each case under this sub-clause (A), to the extent such debt is secured on a pari passu basis with the Term Loans and (B) the Loans under the Revolving Facility (including Loans under any Incremental Revolving Facility) (to the extent (I) accompanied by a permanent reduction of the corresponding Revolving Commitment or (II) in respect of amounts initially used to fund on the Closing Date certain additional original issue discount or upfront fees), in the case of each of clause (A) and clause (B), made during such fiscal year (without duplication in the next fiscal year) or, at the option Company’s election, after the end of such fiscal year and prior to the Borrower, on or prior time such Excess Cash Flow Application Dateprepayment is due, toward and other than to the prepayment extent that any such prepayment, redemption or repurchase is funded with the proceeds of Long-Term Indebtedness and (ii) the Term Loans as set forth aggregate amount of any Capital Expenditures (including contracted but not yet consummated and planned Capital Expenditures) made during such fiscal year (without duplication in Section 4.2(d). Each the next fiscal year) or, at the Company’s election, after the end of such prepayment shall be made on a date (an “fiscal year and prior to the time such Excess Cash Flow Application Date”) no later prepayment is due, and other than ten (10) days after to the date on which extent that any such Capital Expenditure is funded with the financial statements referred to in Section 7.1(a) for the fiscal year proceeds of the Borrower Long-Term Indebtedness; provided that, with respect to which each fiscal year, a prepayment shall only be required under this Section 2.13(c) if the applicable prepayment under this Section 2.13(c) for such prepayment fiscal year is made are greater than $25,000,000 (the “ECF Threshold”); provided further that only amounts in excess of the ECF Threshold shall be required to be delivered applied to the Lendersprepay Tranche B Term Loans under this Section 2.13(c).
(d) Amounts The application of any prepayment pursuant to Section 2.13(a) or (b) shall be made ratably to the Term Loans based on the outstanding respective principal amounts thereof. The application of any prepayment pursuant to Section 2.13(c) shall be applied in connection with solely to the Tranche B Term Loans. Partial prepayments made of the Term Loans pursuant to this Section 4.2 2.13 shall be applied to the remaining installments thereof in the direct order of maturity. The application of any prepayment of the Term Loans in accordance with pursuant to this Section 4.8 and 2.13 shall be made, first, to Base Rate ABR Loans and, and second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.13 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional If at any time the Total Revolving Extensions of Credit exceeds the Total Revolving Commitments (including as a result of a change in the Exchange Rate for the purchase of Dollars with a Foreign Currency) for a period of ten consecutive Business Days, the Borrowers shall, within one Business Day of notice thereof from the Administrative Agent, prepay the Revolving Loans in an amount equal to the amount of such excess or cash collateralize L/C Obligations in respect of any Letters of Credit to the extent necessary to eliminate any such excess.
(f) Notwithstanding any other provisions of Section 2.13, to the extent any or all of the Net Cash Proceeds from any Asset Sale or Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Company or any applicable Domestic Subsidiary (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation as long as such repatriation does not create a material adverse tax consequence) or if the Company has determined in good faith that repatriation of any such amount to the Company or any applicable Domestic Subsidiary would have material adverse tax consequences with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay Term B Commitment Loans at the times provided in this Section 2.13 but may be retained by the applicable Foreign Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Company or the applicable Domestic Subsidiary, or the Company believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow 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 or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the applicable Term Loans as otherwise required pursuant to this Section 2.13.
(g) Notwithstanding anything to the contrary in this Section 2.13, to the extent any assets that are sold in an Asset Sale do not constitute PP&E Collateral as defined under the Target Indentures as in effect on the Closing Date (“Non-PP&E Collateral Assets”) and the Net Cash Proceeds from any such Asset Sale of Non-PP&E Collateral Assets are required to be used to make a mandatory prepayment under this Section, then a pro rata amount of such Net Cash Proceeds may be used to ratably prepay, repay, redeem, reduce or purchase (or offer to prepay, repay, redeem, reduce or purchase) obligations under the Target Notes in accordance with the Target Indentures (and the Term Commitments amount of each Lender) any such mandatory prepayment under this Section 2.13 shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1be reduced by a like amount).
Appears in 1 contract
Sources: Credit Agreement (Tenneco Inc)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Company or issued by any Group Member after the Closing Date of its Restricted Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.02), then not later than the next Business Day following such incurrence, the Term Loans shall be prepaid by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)incurrence.
(1b) If on any date following the Closing Date the Company or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice (and, for the avoidance of doubt, in any event after giving effect to any commitment reduction and related prepayment (if applicable) required pursuant to Section 2.10(f)) the Company intends to acquire or repair assets useful in the business of, or otherwise reinvest in, the Company and its Restricted Subsidiaries with all or any portion of the relevant Net Cash Proceeds, not later than the fifth Business Day following the receipt by the Company or such Subsidiary of such Net Cash Proceeds, the Term Loans shall be delivered in respect thereof, prepaid by an amount equal to 100% the amount of such Net Cash Proceeds; provided that (i) any such prepayment shall only be required with the aggregate amount of Net Cash Proceeds shall be applied on such date toward the prepayment from any Asset Sale or Recovery Event received in any fiscal year of the Term Loans as set forth Company in Section 4.2(d); provided that, excess of $20,000,000 and (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date, 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 shall be applied toward Event, provided however that (x) to the prepayment extent agreed by the Majority Facility Lenders in respect of the Term Loans B-3 Loans, Net Cash Proceeds from a Specified Disposition may be reinvested as set forth in Section 4.2(d).
above or used to repay, prepay, redeem or defease any Indebtedness (2including the 2027 Senior Notes) Notwithstanding the foregoing, and (y) to the extent that (and for so long as) any of or all not agreed by the Majority Facility Lenders in respect of the Term B-3 Loans, Net Cash Proceeds of from a Specified Disposition shall not be subject to any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise reinvestment rights and shall instead be applied in its entirety to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to prepay the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionTerm Loans.
(c) The Borrower shallNot later than five Business Days following a Specified Distribution, unless otherwise agreed by the Majority Facility Lenders in respect of the Term B-3 Loans, 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 each the relevant Excess Cash Flow Application Date, apply the Term B-3 Loans shall be prepaid by an amount equal to (x) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period orminus (y) voluntary payments of Term Loans (including Incremental Term Loans) under Section 2.11, at Credit Agreement Refinancing Debt that is secured on a pari passu basis with the option of Obligations and Revolving Credit Loans (to the Borrowerextent accompanied by a permanent commitment reduction), on in each case during such fiscal year or following such fiscal year and prior to such Excess Cash Flow Application DateDate to the extent not previously deducted pursuant to this clause (y) in any prior period, toward but only to the prepayment extent that such prepayments are not made with the proceeds of the Term Loans as set forth in Section 4.2(dlong-term Indebtedness (other than revolving Indebtedness). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days five Business Days after the earlier of the date on which the financial statements of the Company referred to in Section 7.1(a) 6.01(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, (i) are required to be delivered to the LendersLenders and (ii) are actually delivered.
(e) In the event of any termination of all the Revolving Credit Commitments, each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and Swing Line Loans and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and each Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the sum of (i) the aggregate Committed Credit Exposure of all the Revolving Credit Lenders plus (ii) the outstanding aggregate principal amount or Assigned Dollar Value of all Competitive Loans made by all the Revolving Credit Lenders plus (iii) the L/C Obligations plus (iv) the aggregate principal amount of all Swing Line Loans made by the Swing Line Lender 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 and Swing Line Loans in an amount equal to the lesser of (x) the amount necessary to eliminate such excess and (y) the amount of the applicable Borrowings referred to in subclauses (i), (ii) and (iv) above and, after the Revolving Credit Loans and/or Swing Line Loans, as applicable, 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/or Swing Line 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, (2) the outstanding aggregate principal amount or Assigned Dollar Value of all Competitive Loans made by all the Revolving Credit Lenders and (3) the aggregate principal amount of all Swing Line Loans made by the Swing Line Lender 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 and Swing Line Loans, as applicable, in an aggregate principal amount sufficient to eliminate such excess. On the date of any termination or reduction of the Revolving Credit Commitments pursuant to this clause (d), the Borrowers shall pay or prepay so much of the Standby Borrowings and Swing Line Loans, as applicable, 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) Amounts 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 material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) such repatriation or any distribution of the relevant amounts would result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in connection 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 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 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 Proceeds received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(g) All prepayments made pursuant to this Section 4.2 2.12 shall be subject to Section 2.21, but shall otherwise be without premium or penalty, and shall be accompanied by accrued interest on the principal amount to be repaid to but excluding the date of payment.
(h) Each prepayment of Term Loans made under clauses (a), (b) or (c) of this Section 2.12 shall be applied pro rata among each Class of Term Loans then outstanding and within each such Class to the prepayment remaining principal repayment installments thereof as directed by the Company and, in the absence of such direction, to the remaining principal repayment installments of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loansdirect order of maturity. Each prepayment of the outstanding Term B-3 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 applicable Borrower and, in the absence of such direction, to the remaining principal repayment installments of the Term B-3 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 Loans under this Section 4.2 shall be accompanied 2.12 (other than Section 2.12(a), 2.12(b) (only with respect to a Specified Disposition) and 2.12(c)), each Term Loan Lender may reject all or a portion of its Term Loan Percentage, or other applicable share provided for under this Agreement, of such mandatory prepayment of Term Loans (such declined amounts, the “Declined Proceeds”) by accrued interest providing written notice (each, a “Rejection Notice”) to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (Administrative Agent and the Term Commitments of each Lender) shall terminate in its entirety at Company no later than 5:00 p.m., New York City time, on two Business Days after the Closingupon funding on date of such ▇▇▇▇▇▇’s receipt of notice from the Amendment No.1Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Loan Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Subject to the terms of this Agreement, any Declined Proceeds remaining shall be retained by the Company.
Appears in 1 contract
Sources: Third Amended and Restated Credit Agreement (ENVIRI Corp)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and accrued and unpaid interest thereon as set forth in Section 4.2(d4.2(e).
(1b) If on any date any Group Member shall receive Net Cash Proceeds in excess of $5,000,000 in any fiscal year from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and accrued and unpaid interest thereon as set forth in Section 4.2(d4.2(e); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and accrued and unpaid interest thereon as set forth in Section 4.2(d4.2(e).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, [reserved].If on each Excess the last Business Day of any week during the Maximum Cash Flow Application Date, apply Balance Period the ECF Percentage aggregate amount of cash and Cash Equivalents of the excessBorrower and its Subsidiaries exceeds $75,000,000, if any, then the amount of (i) Excess such cash and Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during Equivalents that exceeds $75,000,000 shall be applied promptly after such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, date toward the reduction of outstanding amounts under first, Swingline Loans and second, Revolving Loans, in each case, to the extent any are then outstanding and without resulting in a permanent reduction in any Revolving Commitments. 53
(d) [reserved].
(e) Unless any Increase Term Joinder or any other amendment governing any Incremental Term Loans, any Replacement Term Loans and/or any term loans provided by an Extending Term Lender provides that Incremental Term Loans, Replacement Term Loans or such term loans provided by an Extending Term Lender, as applicable, shall participate on a less than pro rata basis with the Initial Term Loans in connection with prepayments pursuant to this Section 4.2, each prepayment of Term Loans pursuant to this Section 4.2 shall be applied on a pro rata basis between the Initial Term Loans and each Additional Term Facility then outstanding based on the aggregate principal amount of the Term Loans as set forth in Section 4.2(dunder each such Term Facility then outstanding (provided, that any prepayment of Term Loans with the net proceeds of an Incremental Term Facility or Replacement Term Loans incurred for the purpose of refinancing or replacing such Term Loans shall be applied to the Term Loans of the applicable Term Facility being refinanced or replaced). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with With respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts Term Loans under any Term Facility, amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to against the prepayment remaining scheduled installments of principal due in respect of the Term Loans of such Term Facility 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 Term Facility in direct order of maturity), and each such prepayment shall be paid to the Term Lenders of such class in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar LoansLoans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 4.11. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ef) The TotalAdditional 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 B Commitment Loans required to be made by the Borrower pursuant Section 4.2(b), to decline all (but not a portion) of its share 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 4.2(a) above to the extent that such prepayment is made with the Net Cash Proceeds of any Permitted Refinancing 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 share 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 share of the total amount of such mandatory prepayment of Term Loans.
(g) Notwithstanding the foregoing, to the extent that (and for so long as) the repatriation to the Borrower as a distribution or dividend of any amounts required to mandatorily prepay the Term Commitments Loans pursuant to Section 4.2(b) above that are attributable to any Foreign Subsidiary are (i) prohibited or delayed by applicable local Requirements of each LenderLaw from being repatriated to the jurisdiction of organization of the Borrower or (ii) would result in a material and adverse Tax liability (including any withholding Tax) (such amount, a “Restricted Amount”), the calculation of Net Cash Proceeds shall terminate be reduced by such Restricted Amount; provided, that once such repatriation of any such affected Net Cash Proceeds is (x) permitted under the applicable local Requirements of Law and/or (y) would no longer result in its entirety at 5:00 p.m.such material and adverse Tax liability, New York City time, on the Closingupon funding on Group Members shall be treated as having received Net Cash Proceeds equal to the Amendment No.1amount of such reduction.
Appears in 1 contract
Mandatory Prepayments. (ai) If any Equity Interests (excluding (x) any issuance of Series A Convertible Preferred Stock in exchange for Indebtedess, (y) any Equity Interests issued pursuant to Section 8.19, and (z) any Warrant Shares (as defined in the Warrant) issued pursuant to the Warrant) or Indebtedness (excluding any Indebtedness incurred in accordance with Section 9.02) shall be issued or incurred by the Parent or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)of its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1ii) If on any date any Group Member the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless except in the case of a Recovery Event where the Borrower has delivered a Reinvestment Notice shall be delivered in respect thereofto the Administrative Agent, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided that, notwithstanding the foregoing, that on each Reinvestment Prepayment DateDate with respect to a Recovery Event, 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 as set forth in Section 4.2(d)Loans.
(2iii) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all calendar month of the Net Borrower commencing with the calendar month ending on January 31, 2015, there shall be Excess Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the BorrowerFlow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten five (105) days Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 8.01(d), for the fiscal year of the Borrower calendar month with respect to which such prepayment is made made, are required to be delivered to the LendersAdministrative Agent and the Lenders and (ii) the date such financial statements are actually delivered.
(div) Amounts to be applied in connection with prepayments made The application of any prepayment pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 3.03 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Credit Agreement (Baron Energy Inc.)
Mandatory Prepayments. (a) If On each Fee Payment Date, the Administrative Agent shall determine the Total Multicurrency Extensions of Credit as of the last day of the related Fee Payment Period. If, as of the last day of any Indebtedness Fee Payment Period, the Total Multicurrency Extensions of Credit exceeds the Total Multicurrency Commitments then in effect by 5% or more, then the Administrative Agent shall be incurred notify the Company and, within five Business Days of such notice, the Company or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), relevant Subsidiary Borrower shall prepay Multicurrency Loans in an aggregate principal amount at least equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayedexcess; provided, that once such repatriation the failure of the Administrative Agent to determine the Total Multicurrency Extensions of Credit as provided in this Section 0 shall not subject the Administrative Agent to any liability hereunder.
(b) On each Fee Payment Date, the Administrative Agent shall determine the Total L/C Tranche Extensions of Credit as of the last day of the related Fee Payment Period. If, as of the last day of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of LawFee Payment Period, the Group Members Total L/C Tranche Extensions of Credit exceeds the Total L/C Tranche Commitments then in effect by 5% or more, then the Administrative Agent shall be treated as having received Net Cash Proceeds notify the Company and, within five Business Days of such notice, the Company or the relevant Subsidiary Borrower shall prepay L/C Tranche Loans or Collateralize outstanding Letters of Credit in an aggregate principal or face amount at least equal to such excess; provided, that the amount failure of such reductionthe Administrative Agent to determine the Total L/C Tranche Extensions of Credit as provided in this Section 2.13(b) shall not subject the Administrative Agent to any liability hereunder.
(c) The Brazilian Administrative Agent shall determine the Total Brazilian Extensions of Credit on a quarterly basis as detailed in the Brazilian Bank Certificates. If, as of any quarterly date of determination, the Total Brazilian Extensions of Credit exceeds the Total Brazilian Commitments then in effect by 5% or more, then the Brazilian Administrative Agent shall notify the Administrative Agent and the Company and, within five Business Days of such notice, the Company or the relevant Subsidiary Borrower shallshall prepay the Brazilian Loans in an aggregate principal amount at least equal to such excess; provided, on each Excess Cash Flow Application Date, apply that the ECF Percentage failure of the excess, if any, Brazilian Administrative Agent to determine the Total Brazilian Extensions of (iCredit as provided in this Section 2.13(c) Excess Cash Flow for shall not subject the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred Brazilian Administrative Agent to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lendersany liability hereunder.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 If at any time the Total Consolidated GMF Exposure shall be applied to exceed $1 billion, the prepayment Company, GMF or any Subsidiary of GMF shall, within one (1) Business Day, prepay the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of then outstanding Total Consolidated GMF Exposure by the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date amount of such prepayment on the amount prepaidexcess.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: 3 Year Revolving Credit Agreement (General Motors Financial Company, Inc.)
Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock (other than any Capital Stock issued by Holdings to finance any Permitted Acquisition) shall be issued by Holdings or any of its Subsidiaries, an amount equal to 75% (the "Equity Percentage") of the Net Cash Proceeds thereof shall be applied within two Business Days following the date of such issuance toward the prepayment of the Term Loans; provided that the Equity Percentage shall instead equal 25% if the Consolidated Leverage Ratio, determined as at the end of the most recent period of four consecutive fiscal quarters ended prior to the required date of prepayment for which the relevant financial information is available on a pro forma basis as if such issuance had occurred on the first day of such period, is less than 3.50 to 1.0.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by Holdings or issued by any Group Member after of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.2 as in effect on the Closing Date (other than Excluded Indebtednessdate of this Agreement), an amount equal to 100% %) of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1c) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within two Business Days following such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $15,000,000 in any fiscal year of the Reporting Entity, 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 as set forth in Section 4.2(d).
(2) Notwithstanding Loans; provided, further, that, notwithstanding the foregoing, the Borrower shall not be required to prepay the Term Loans in accordance with this paragraph (c) except to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any from all Asset Sale Sales which have not been so applied equals or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to exceeds $5,000,000 in the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionaggregate.
(cd) The Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Reporting Entity, commencing with the fiscal year ending December 31, 2002, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply 75% (or, if the ECF Percentage Consolidated Leverage Ratio as of the excesslast day of such fiscal year is not greater than 3.50 to 1.0, if any, 50%) of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Reporting Entity referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made The application of any prepayment under a Facility pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded IndebtednessIndebtedness incurred pursuant to Section 7.2(f)(ii)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Subject to Section 2.12(e), if on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, which, together with the Net Cash Proceeds received from all other Asset Sales or Recovery Events in such fiscal year exceed $40,000,000, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds in excess of $40,000,000, and an amount equal to all Net Cash Proceeds received thereafter in such fiscal year, shall be applied on such date of receipt toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Subject to Section 2.12(e), if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2013, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply an amount equal to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or(such amount, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, “Adjusted ECF Amount”) toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b). The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding any provision to the contrary in this Agreement, the following amounts shall be excluded from the calculation of the amount of Net Cash Proceeds from any Asset Sale or Recovery Event or the Adjusted ECF Amount, as applicable:
(i) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary, Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary or any portion of the Adjusted ECF Amount attributed to a Foreign Subsidiary, as applicable, the distribution of which by a Foreign Subsidiary to the Borrower or a Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary is prohibited or delayed by applicable local law. Any amount that is excluded from the calculation of Net Cash Proceeds or the Adjusted ECF Amount in accordance with this Section 2.12(e)(i) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) or 2.12(c) and may be deducted from any amounts otherwise due under Section 2.12(b) or 2.12(c), as applicable, so long, but only so long, as the applicable local law will not permit a distribution of those funds by the Foreign Subsidiary (the Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable by the applicable law to eliminate such limitations). Once the distribution of any of such affected Net Cash Proceeds or Adjusted ECF Amount, as applicable, is permitted under the applicable local law, the Borrower shall prepay the Term B Commitment Loans (not later than five (5) Business Days after such distribution is permitted) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(e)(ii) precludes such prepayment, and
(ii) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary, Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary or any portion of the Adjusted ECF Amount attributed to a Foreign Subsidiary, in each case, to the extent that the Borrower has determined in its reasonable judgment that the distribution of any of or all such items to the Borrower or any Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary would have any adverse tax consequence. Any amount that is excluded from the calculation of Net Cash Proceeds or the Adjusted ECF Amount in accordance with this paragraph 2.12(e)(ii) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) or 2.12(c) and may be deducted from any amounts otherwise due under Section 2.12(b) or 2.12(c). Once the Borrower determines in its reasonable judgment that a distribution of any of such affected Net Cash Proceeds or Adjusted ECF Amount , as applicable, would cease to result in adverse tax consequences, the Borrower shall prepay the Term Loans (not later than five (5) Business Days after such determination) by an amount equal to such portion of such affected amount , except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(e)(i) precludes such prepayment. Notwithstanding anything to the contrary in this Section 2.12, in no event shall the Borrower be required to repatriate cash of Non-Domestic Subsidiaries.
(f) If, on any Calculation Date, (i) the aggregate Dollar Equivalents of the aggregate outstanding principal amounts of Foreign Currency Loans exceeds an amount equal to 105% of the Foreign Currency Sublimit, the Borrower shall, without notice or demand, immediately repay such of the outstanding Foreign Currency Loans in an aggregate principal amount such that, after giving effect thereto, the aggregate Dollar Equivalents of the outstanding principal amounts of Foreign Currency Loans does not exceed the Foreign Currency Sublimit or (ii) the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments, and the Term Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments for four consecutive Business Days thereafter, then on such fourth Business Day thereafter, the Borrower shall, without notice or demand, immediately repay such of each Lenderthe outstanding Revolving Extensions of Credit in an aggregate principal amount such that, after giving effect thereto, the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) shall terminate in its entirety at 5:00 p.m., New York City time, on do not exceed the Closingupon funding on the Amendment No.1Total Revolving Commitments.
Appears in 1 contract
Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Company or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.02), then not later than the next Business Day following such incurrence, the Loans shall be prepaid by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)incurrence.
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, not later than the fifth Business Day following the receipt by the Company or such Subsidiary of such Net Cash Proceeds, the Loans shall be prepaid by an amount equal to 100% the amount of such Net Cash Proceeds; provided that (i) any such prepayment shall only be required with the aggregate amount of Net Cash Proceeds shall be applied on such date toward the prepayment from any Asset Sale or Recovery Event received in any fiscal year of the Term Loans as set forth Company in Section 4.2(d); provided that, excess of $1,000,000 and (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date, 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 shall be applied toward the prepayment Event. The provisions of the Term Loans as set forth in this Section 4.2(d).
(2) Notwithstanding the foregoing, do not constitute a consent to the extent that (and for so long as) any of or all of the Net Cash Proceeds consummation of any Asset Sale or any Recovery Event Disposition not permitted by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction7.05.
(c) The Borrower shallUnless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Company commencing with the fiscal year ending January 31, 2013, there shall be Excess Cash Flow, then, on each the relevant Excess Cash Flow Application Date, apply the Loans shall be prepaid by an amount equal to (x) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option minus (y) voluntary payments of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in under Section 4.2(d)2.09 during such fiscal year but only to the extent that such prepayments do not occur pursuant to a refinancing of all or any portion of such Term Loans. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days five Business Days after the earlier of the date on which the financial statements of the Company referred to in Section 7.1(a) 6.01(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, (i) are required to be delivered to the LendersLenders and (ii) are actually delivered.
(d) Amounts In the event of any termination of all the Revolving Credit Commitments, each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and each Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Total Revolving Extensions of Credit would exceed the Total Revolving Credit Commitment, then the Borrowers shall, on the date of such reduction or at such other time, repay or prepay Revolving Credit Loans 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.
(e) Notwithstanding any other provisions of this Section 2.10, (A) to the extent that any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary or Excess Cash Flow estimated in good faith by the Company to be attributable to Foreign Subsidiaries are prohibited or delayed by applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary duties of directors and managers of Foreign Subsidiaries) from being repatriated to the United States or passed on to or used for the benefit of the Company, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in connection this Section 2.10 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as applicable local law delays or will not permit repatriation thereof to the United States (the Company hereby agreeing to cause the applicable Foreign Subsidiary to use commercially reasonable efforts in compliance with applicable law to effect such repatriation), and once such repatriation to the United States of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under applicable local law, such repatriation to the United States will be promptly effected and such repatriated 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 Loans to the extent otherwise required under this Section 2.10 and (B) to the extent that the Company has determined in good faith that repatriation to the United States of any of or all the Net Cash Proceeds of any Disposition by a Foreign Subsidiary or Excess Cash Flow estimated in good faith by the Company to be attributable to Foreign Subsidiaries or passing on to or use thereof for the benefit of the Company would cause significant adverse tax consequences to the Company or any of its Subsidiaries, such 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 such Net Cash Proceeds so retained would otherwise have been required to be applied to prepayments to the extent otherwise required under Section 2.10(b) or any such Excess Cash Flow would have been required to be applied to prepayments pursuant to Section 2.10(c), the Company applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by or was attributable to the Company 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 to the United States (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary). For the avoidance of doubt, but without limiting the Company’s obligations under this Section 2.10, in no circumstance shall this Section 2.10 require any Foreign Subsidiary to make any dividend of or otherwise repatriate for the benefit of the Company any portion of any Net Cash Proceeds received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(f) All prepayments made pursuant to this Section 4.2 2.10 shall be applied subject to the prepayment of the Term Loans in accordance with Section 4.8 2.19, but shall otherwise be without premium or penalty, and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest on the principal amount to be repaid to but excluding the date of such prepayment on the amount prepaidpayment.
(eg) Each prepayment of Loans pursuant to this Section 2.10 shall be applied first, pro rata to the installments of Term Loans which are scheduled to mature in the 24-month period immediately following such prepayment, second, to remaining installments of Term Loans pro rata according to the outstanding principal amounts thereof, third, if no Term Loans are outstanding, to prepay outstanding Revolving Credit Loans to the full extent thereof, and fourth, if no Term Loans or Revolving Credit Loans are outstanding, to cash collateralize any outstanding Letters of Credit (up to an aggregate amount equal to the aggregate undrawn face amount of all such Letters of Credit) (it being understood that any such repayment or cash collateralization shall not permanently reduce Revolving Credit Commitments).
(h) The TotalAdditional Term B Commitment Company shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.10, (1) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment and (2) at least one Business Day prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the Term Commitments principal amount of each LenderLoan (or portion thereof) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1to be prepaid.
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Mandatory Prepayments. (a) If Upon receipt by the Company or any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the its Restricted Subsidiaries of Net Cash Proceeds thereof arising from an Asset Sale, Property Loss Event or Debt Issuance, the Borrowers shall be applied on immediately prepay the date of such incurrence Loans (or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered provide cash collateral in respect thereof, of Letters of Credit and Bankers' Acceptances) in an amount equal to 100% of such Net Cash Proceeds; provided, however, that (i) only Net Cash Proceeds in excess of $2,000,000 in any Fiscal Year shall be applied on such date toward required to prepay Loans pursuant to this Section 2.10(a), (ii) in the prepayment case of any Net Cash Proceeds arising from a Reinvestment Event, the Term Borrowers shall prepay the Loans as set forth (or provide cash collateral in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, respect of Letters of Credit and Bankers' Acceptances) in an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to the relevant such Reinvestment Event and, pending application of such proceeds as specified in the Reinvestment Notice, shall pay the same to the Administrative Agent to be held in a Cash Collateral Account and (iii) only 50% of the Net Cash Proceeds arising from a Debt Issuance shall be required to be applied as a prepayment of the Loans (or as cash collateral in respect of Letter of Credit and Bankers' Acceptances) if the Leverage Ratio as of the last day of the most recent Fiscal Quarter for which Financial Statements have been delivered pursuant to Section 5.4(c) is less than 3:00 to 1. Any such mandatory prepayment shall be applied toward in accordance with Section 2.10(c) below.
(b) The Borrowers shall prepay the Term Loans within 90 days of the last day of each Fiscal Year, in an amount equal to 75% of Excess Cash Flow for such Fiscal Year (or, in the case of Fiscal Year 2001, the period beginning July 1, 2000 and ending on the last day of such Fiscal Year); provided, however, only 50% of such Excess Cash Flow should be required to be applied as a prepayment of the Term Loans if the Leverage Ratio as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount last day of such reductionFiscal Year is less than 3:00 to 1.
(c) The Borrower shallAny prepayments made by the Borrowers pursuant to Section 2.10(a) shall be applied as follows: first, on each Excess Cash Flow Application Date, apply to prepay the ECF Percentage outstanding principal balance of the excessTerm Loans, if anyuntil such Term Loans shall have been prepaid in full; second, of (i) Excess Cash Flow for to repay the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option outstanding principal balance of the BorrowerSwing Loans until such Swing Loans shall have been repaid in full; third, on or prior to repay the outstanding principal balance of the Revolving Loans until such Excess Cash Flow Application DateRevolving Loans shall have been paid in full; and then, toward to provide cash collateral for any Letter of Credit Obligations and Bankers' Acceptances Obligations in the prepayment manner set forth in Section 7.3 until all such Letter of Credit Obligations and Bankers' Acceptances Obligations have been fully cash collateralized in the manner set forth therein. All prepayments of the Term Loans as set forth in made pursuant to this Section 4.2(d). Each such prepayment 2.10 shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after applied to reduce ratably the date on which the financial statements referred to in Section 7.1(a) for the fiscal year remaining installments of the Borrower with respect to which such prepayment is made are outstanding principal amount of the Term Loans. All repayments of Revolving Loans and Swing Loans required to be delivered made pursuant to this Section 2.10 shall result in a permanent reduction of the Revolving Credit Commitments to the Lendersextent provided in Section 2.6(b). Payments received in respect of any Canadian Revolving Credit Outstandings shall be distributed to each Canadian Lender in accordance with its Canadian Ratable Portion.
(d) Amounts If at any time, the aggregate principal amount of Revolving Credit Outstandings exceed the aggregate Revolving Credit Commitments at such time, the Borrowers shall forthwith prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to be applied such excess. If any such excess remains after repayment in connection with prepayments made pursuant to this full of the aggregate outstanding Swing Loans and Revolving Loans, the Borrowers shall provide cash collateral for the Letter of Credit Obligations and Bankers' Acceptances Obligations in the manner set forth in Section 4.2 shall be applied 7.3 to the prepayment of the Term Loans in accordance with Section 4.8 and first, extent required to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of eliminate such prepayment on the amount prepaidexcess.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety If at 5:00 p.m., New York City any time, on the Closingupon funding on aggregate principal amount of Revolving Credit Outstandings denominated in an Alternate Currency exceeds the Amendment No.1applicable Multicurrency Sublimit, the Borrowers shall forthwith prepay the Revolving Loans denominated in such Alternate Currency then outstanding in an amount equal to such excess.
Appears in 1 contract
Mandatory Prepayments. In addition to the required payments of principal of the Term Loan set forth in Section 2.08(c) (Repayment of Loans) and any optional payments of principal of the Term Loan and the Revolving Loans and Foreign Currency Loans effected under clauses (a) If any Indebtedness and (b) above, the Borrower shall make the following required prepayments of the Loans, each such payment to be incurred or issued by any Group Member made to the Administrative Agent for the benefit of the Lenders within the time period specified below.
(i) The Borrower shall prepay the Loans within 100 days after the Closing Date (other than Excluded Indebtedness)last day of each fiscal year of the Borrower, in an amount equal to 100% fifty percent (50%) of the Net amount of Excess Cash Proceeds thereof Flow for such fiscal year or if earlier, the date that is ten days after the date on which the Borrower shall have delivered its annual financial statements pursuant to Section 6.01(a) (Financial Statements) for such fiscal year), which payment shall be applied on accompanied by a certificate of a Responsible Officer of the date Borrower (which may be incorporated within the Compliance Certificate otherwise required to be delivered under Section 6.02(b) (Certificates; Other Information)) setting forth in reasonable detail the calculations utilized in computing Excess Cash Flow and the amount of such incurrence or issuance toward prepayment; provided, however, that (i) if the prepayment Total Leverage Ratio is less than 3.00 to 1.00 as at the end of the Term Loans as set forth in Section 4.2(d)fiscal year of the Borrower ending on December 31, 2005, the Borrower shall not be required to make the foregoing prepayment for such fiscal year and (ii) for each fiscal year of the Borrower ending on or after December 31, 2006, (x) if the Total Leverage Ratio is less than 3.00:1.00 for such fiscal year, then such percentage shall be reduced to twenty five percent (25%) and (y) if the Total Leverage Ratio is less than 2.50:1.00 for such fiscal year, then such percentage shall be reduced zero.
(1ii) If on any date any Group Member The Borrower shall receive Net Cash Proceeds from any Asset Sale make, or Recovery Event thenshall cause each applicable Subsidiary to make, unless a Reinvestment Notice shall be delivered prepayment with respect to each Equity Issuance by such Person (other than Equity Securities issued (x) to the Borrower or a Guarantor, (y) to the Sponsor as consideration for the Sponsor Equity Financing or (z) subject to clause (B) of the proviso at the end of this clause (ii), solely to the extent the proceeds of such issuance of Equity Securities are used to finance Permitted Acquisitions) in respect thereof, an amount equal to 100% fifty percent (50%) of the Net Proceeds of each such Net Cash Proceeds Equity Issuance of the Borrower or any Subsidiary; provided that (A) no prepayment shall be applied on such date toward the prepayment required hereunder of the Term Loans as set forth first $40,000,000 of Net Proceeds in each fiscal year of the Borrower realized from (I) the issuance of Equity Securities in connection with the exercise of any option, warrant or other convertible security of the Borrower or any Subsidiary or (II) the issuance, award or grant of Equity Securities to eligible participants under a stock plan of the Borrower and (B) if the Borrower shall have delivered a Reinvestment Notice with respect to any issuance of Equity Securities to finance a Permitted Acquisition, (I) no prepayment shall be required under this Section 4.2(d); provided that, notwithstanding 2.06(e)(ii) until the foregoing, applicable Reinvestment Prepayment Date and (II) on each the applicable Reinvestment Prepayment Date, the Borrower shall prepay the Loans (or provide Cash Collateral in respect of Letters of Credit) in an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to the relevant such Reinvestment Event Event, which mandatory prepayment shall be applied toward in accordance with the final paragraph of this Section 2.06.
(iii) Subject to the proviso in Section 7.05(i) (Dispositions), the Borrower shall make, or shall cause each applicable Subsidiary to make, a prepayment in an amount equal to one hundred percent (100%) of the Net Proceeds from (x) each Disposition (other than Dispositions permitted under Section 7.05(a) through (g)) and (y) each Property Loss Event; provided, that the Borrower shall not be required to prepay the Loans with the Net Proceeds from any Disposition permitted under Section 7.05(h) unless and to the extent such Net Proceeds exceed the Dollar Equivalent of $10,000,000 in the aggregate; and provided, further, that if the Borrower shall have delivered a Reinvestment Notice with respect to such Disposition or Property Loss Event, (I) no prepayment shall be required under this Section 2.06(e)(iii) until the applicable Reinvestment Prepayment Date and (II) on the applicable Reinvestment Prepayment Date, the Borrower shall prepay the Loans (or provide Cash Collateral in respect of Letters of Credit) in an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to such Reinvestment Event, which mandatory prepayment shall be applied in accordance with the final paragraph of this Section 2.06; and provided, further, that despite the application of this Section 2.06(e)(iii) to any Disposition that is not otherwise permitted under this Agreement, nothing in this Section 2.06(e)(iii) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of a Disposition that is not permitted under this Agreement.
(iv) The Borrower shall make, or shall cause each applicable Subsidiary to make, a prepayment with respect to each Debt Issuance by the Borrower or any Subsidiary (other than Debt Issuances of the types described in (x) clauses (a), (b) and (e) of Section 7.03 (Indebtedness) and (y) subclause (ii) of Section 7.03(k)(Indebtedness)) in an amount equal to one hundred percent (100%) of the Net Proceeds of each such Debt Issuance; provided, however, that no prepayment shall be required to this Section 2.06(e)(iv) from the Net Proceeds received from any Debt Issuance of the type described in Section 7.03(h)(Indebtedness) to the extent such Net Proceeds are used within ten (10) Business Days of the receipt thereof by the Borrower or the applicable Subsidiary to consummate a Permitted Acquisition, as shall be certified to the Agents by a Responsible Officer of the Borrower. Each prepayment required to be made pursuant to the foregoing clauses (ii), (iii) and (iv) shall be made within ten (10) Business Days of receipt of the applicable Net Proceeds giving rise to such prepayment requirement. The Borrower shall give not less than three (3) Business Days' prior written notice of any such prepayment to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the applicable Net Proceeds giving rise to such prepayment requirement and the amount of such prepayment. Notwithstanding anything in the preceding sentence to the contrary, if the Borrower shall have delivered a Reinvestment Notice with respect to any Equity Issuance, Disposition or Property Loss Event, as the case may be, that would otherwise give rise to a mandatory prepayment under Section 2.06(e)(ii) or (iii), as applicable, the Borrower shall be required to make a prepayment of the Loans (or provide Cash Collateral in respect of Letters of Credit) in an amount equal to the Reinvestment Prepayment Amount on the applicable Reinvestment Prepayment Date. In the event that the Borrower elects to deliver a Reinvestment Notice with respect to any Equity Issuance, Disposition or Property Loss Event that would otherwise give rise to a mandatory prepayment under Section 2.06(e)(ii) or (iii), as applicable, the Borrower shall deliver such Reinvestment Notice to the Administrative Agent within ten (10) Business Days of receipt of the Net Proceeds of such Equity Issuance, Disposition or Property Loss Event, as the case may be. Prepayments made under this Section 2.06(e) shall be applied (a) first, other than in respect of any prepayment made with the Net Proceeds of a Reinvestment Event prior to the applicable Reinvestment Prepayment Date (but including the Net Proceeds of a Reinvestment Event on the applicable Reinvestment Prepayment Date), to repay the outstanding principal balance of the Term Loan, until the Term Loan shall have been repaid in full; (b) second, to repay the outstanding principal balance of the Swing Line Loans, until such Swing Line Loans shall have been repaid in full; (c) third, to repay the outstanding principal balance of the Revolving Loans and Foreign Currency Loans, until such Loans shall have been paid in full; and (d) then, to Cash Collateralize any outstanding L/C Obligations in the manner set forth in Section 8.02(c) (Remedies Upon Event of Default) until all such L/C Obligations have been fully Cash Collateralized in the manner set forth therein. All repayments of the Term Loan pursuant to this Section 2.06(e) shall be applied to reduce ratably the remaining installments of such outstanding principal amounts of the Term Loan on a pro rata basis. All repayments of Revolving Loans, Foreign Currency Loans and Swing Line Loans required to be made pursuant to Section 2.06(e)(iii) shall result in a permanent reduction of the Aggregate Revolving Credit Commitments to the extent required by Section 2.07(b) (Reduction or Termination of Revolving Credit Commitments); provided, however, that, if such repayment was made from the Net Proceeds of a Reinvestment Event, the Aggregate Revolving Credit Commitments shall not be reduced 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 Aggregate Revolving Credit Commitments shall be reduced only to the extent of the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, after giving effect to any required prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding Loans; and provided, further, that, upon the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds occurrence of any Asset Sale Default or any Recovery Event by a Foreign Subsidiary giving rise of Default on or before the Reinvestment Prepayment Date corresponding to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Reinvestment Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds Aggregate Revolving Credit Commitments shall be reduced by the amount so prohibited or delayed; provided, that once entire Reinvestment Deferred Amount corresponding to such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionReinvestment Event.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Sources: Credit Agreement (Jarden Corp)
Mandatory Prepayments. (a) If Not later than the tenth day following the receipt of Net Cash Proceeds in respect of any Indebtedness Disposition, the Borrower shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), apply an amount equal to 100% of the Net Cash Proceeds thereof received with respect thereto to prepay outstanding Loans in accordance with Section 2.12(d); provided that, if the Borrower shall intend to reinvest such proceeds in productive assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries, or in any investment or acquisition not prohibited hereby, in each case within 365 days of the receipt of such proceeds, then the Borrower 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 on the date of such incurrence or issuance toward the prepayment of the Term to prepay outstanding Loans as set forth in accordance with Section 4.2(d2.12(d).
(1b) If No later than 10 Business Days after the date on which audited financial statements are required to be delivered under Section 5.01(a) with respect to any fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2018, the Borrower shall prepay outstanding Loans in accordance with Section 2.12(d) in an aggregate principal amount equal to (x) 75% of Excess Cash Flow for the fiscal year then ended minus (y) voluntary prepayments of Loans under Section 2.11 made with Internally Generated Cash after the end of such fiscal year but prior to the date such mandatory prepayment is due; provided that such prepayments do not occur in connection with a refinancing of all or any Group Member 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) 50% if the Senior Secured Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 0.80:1.00 but greater than 0.60:1.00, (B) 25% if the Senior Secured Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 0.60:1.00 but greater than 0.40:1.00 and (C) 0% if the Senior Secured Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 0.40:1.00.
(c) 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 Indebtedness permitted under Section 6.01 (other than Refinancing Loans)), the Borrower shall, substantially simultaneously with (and in any Asset Sale event not later than the first Business Day next following) the receipt of such Net Cash Proceeds by the Borrower or Recovery Event thensuch Restricted Subsidiary, unless a Reinvestment Notice shall be delivered in respect thereof, apply an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term to prepay outstanding Loans as set forth in accordance with Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(d) Mandatory prepayments of outstanding Loans under this Agreement shall be allocated pro rata between the Loans, the Incremental Loans and the Refinancing Loans (unless Incremental Loans or Refinancing Loans agreed to receive less than their pro rata share) and, if any Incremental Equivalent Debt so requires, pro rata as to such Incremental Equivalent Debt, and applied first, to the remaining scheduled installments of principal due in respect of the Loans, Incremental Loans and the Refinancing Loans under Sections 2.10(a), (b) and (c) in direct order of maturity against, respectively (excluding the final payments on the Maturity Date of the Loans (or the maturity date in respect of such Incremental Loans or Refinancing Loans) under Sections 2.10(a), (b) and (c) respectively and second, to the final payment on the Maturity Date of the Loans (or the final payment on the maturity date of such Incremental Loans or Refinancing Loans).
(e) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable (except in respect of prepayments required under Section 2.12(c)), at least three (3) Business Days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.12 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. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Loans required to be made pursuant to clauses (a) and (b) 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., New York time, two (2) 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 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. Subject to the terms of the ABL Credit Agreement, any Declined Proceeds remaining shall be retained by the Borrower (or the applicable Restricted Subsidiary) and may be applied by the Borrower or such Restricted Subsidiary in any manner not prohibited by this Agreement.
(f) Notwithstanding the foregoingany other provisions of this Section 2.12, (A) to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event Disposition by a Foreign Subsidiary giving rise to mandatory a prepayment event pursuant to Section 4.2(b)(12.12(a) (each such Asset Sale and Recovery Event, a “Specified Asset SaleForeign Disposition”) ), or Excess Cash Flow attributable to any Foreign Subsidiary are prohibited or delayed by applicable local Requirements of Law law from being repatriated to the jurisdiction United States, an amount equal to the portion of organization of the Borrower, the calculation of such Net Cash Proceeds shall or Excess Cash Flow so affected will not be reduced required to be applied to repay Loans at the times provided in this Section 2.12 so long, but only so long, as the applicable local law will not permit repatriation to the United States (Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the amount so prohibited or delayed; providedapplicable local law to permit such repatriation), that and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local Requirements of Lawlaw, the Group Members shall be treated as having received an amount equal to such Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each or Excess Cash Flow Application Datewill be promptly applied (net of any additional Taxes that would be payable, apply the ECF Percentage as reasonably estimated by Borrower in good faith, or would be reserved if such portion of the excess, if any, of (i) such Net Cash Proceeds or Excess Cash Flow for were repatriated to fund such repayment) to the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option repayment of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall 2.12 to the extent provided herein and (B) to the extent that Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition or Excess Cash Flow attributable to any Foreign Subsidiary would have a material adverse Tax consequence (taking into account any foreign Tax credit or benefit actually realized in connection with such repatriation), an amount equal to the portion of the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the prepayment times provided in this Section 2.12, and to the extent the repatriation of such Net Cash Proceeds or Excess Cash Flow can later be made without having a material adverse tax consequence, an amount equal to such portion of such Net Cash Proceeds or Excess Cash Flow will then be promptly applied (net of any additional Taxes that would be payable, as reasonably estimated by Borrower in good faith, or would be reserved if such portion of such Net Cash Proceeds or Excess Cash Flow were repatriated to fund such repayment) to the repayment of the Term Loans in accordance with Section 4.8 and first, pursuant to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest 2.12 to the date of such prepayment on the amount prepaidextent provided herein.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Credit Agreement (Office Depot Inc)
Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock (other than any Capital Stock issued by the Borrower which yields Qualified Net Cash Equity Proceeds) shall be issued by the Borrower or any of its Subsidiaries at such time when the Consolidated Leverage Ratio (determined as at the end of the most recent period of four consecutive fiscal quarters ended prior to the required date of prepayment for which the relevant financial information is available on a pro forma basis as if such issuance had occurred on the first day of such period) is greater than or equal to 1.50 to 1.00, an amount equal to 25% of the Net Cash Proceeds thereof shall be applied within two Business Days following the date of such issuance (or with respect to Net Cash Proceeds at one time constituting Qualified Net Cash Equity Proceeds, failure to constitute Qualified Net Cash Equity Proceeds) toward the prepayment of the Term Loans.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (including any Indebtedness incurred in accordance with Section 7.2(f)(iii), other than Excluded IndebtednessIndebtedness which yields Qualified Net Cash Debt Proceeds in an aggregate amount not to exceed $175,000,000, but excluding any other Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence (or issuance with respect to Net Cash Proceeds at one time constituting Qualified Net Cash Debt Proceeds, failure to constitute Qualified Net Cash Debt Proceeds) toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans.
(1c) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10075% of such Net Cash Proceeds shall be applied on within two Business Days following such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans; provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $25,000,000 in any fiscal year of the Borrower, 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 as set forth in Section 4.2(d).
(2) Notwithstanding Loans; provided, further, that, notwithstanding the foregoing, the Borrower shall not be required to prepay the Term Loans in accordance with this paragraph (c) except to the extent that (and for so long as) any of or all of the Net Cash Proceeds of from all Asset Sales which have not been so applied equals or exceeds $10,000,000 in the aggregate.
(d) Unless the Required Prepayment Lenders shall otherwise agree, if, for any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization fiscal year of the Borrower, commencing with the calculation of Net Cash Proceeds fiscal year ending December 31, 2003, there shall be reduced by Excess Cash Flow and the amount so prohibited Consolidated Leverage Ratio as of the last day of such fiscal year is greater than or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Lawequal to 1.50 to 1.00, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply 50% (or, if the ECF Percentage Consolidated Leverage Ratio as of the excesslast day of such fiscal year is less than 1.50 to 1.00 but greater than or equal to 1.00 to 1.00, if any, 25%) of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Loans. Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten five Business Days after the earlier of (10i) days after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made The application of any prepayment of Loans pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Mandatory Prepayments. (a) If Unless the Required Lenders shall otherwise agree, if any Indebtedness shall be incurred by the Borrower or issued by any Group Member after the Closing Date of its Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness permitted to be incurred under Section 6.2), then on the date of such incurrence, the Loans shall be prepaid, by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence. The provisions of this Section 2.7(a) do not constitute a consent to the incurrence of any Indebtedness by the Borrower or issuance toward the prepayment any of the Term Loans as set forth in Section 4.2(d)its Subsidiaries.
(1b) If Unless the Required Lenders shall otherwise agree, if on any date the Borrower or any Group Member of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereofthereof on or prior to the date of such Asset Sale or Recovery Event, on the date of receipt by the Borrower or such Subsidiary of such Net Cash Proceeds, the Loans shall be prepaid, by an amount equal to 100% the amount of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d)Proceeds; provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment DateDate the Loans shall be prepaid, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment Event. The provisions of the Term Loans as set forth in this Section 4.2(d).
(2) Notwithstanding the foregoing, do not constitute a consent to the extent that (and for so long as) any of or all of the Net Cash Proceeds consummation of any Asset Sale or any Recovery Event Disposition not permitted by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction6.5.
(c) The Borrower shallUnless the Required Lenders shall otherwise agree, if, for any fiscal year of the Subsidiaries commencing with the fiscal year ending on December 31, 2007, there shall be Excess Cash Flow, then, on each the relevant Excess Cash Flow Application Date, apply the Loans shall be prepaid by an amount equal to the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d)Flow. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 5.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
Lenders and (dii) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidfinancial statements are actually delivered.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded IndebtednessIndebtedness incurred pursuant to Section 7.2(f)(ii))), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(c).
(1b) If Subject to Section 2.12(d), if on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, which, together with the Net Cash Proceeds received from all other Asset Sales or Recovery Events in such fiscal year exceed the greater of $75,000,000 and 5.0% of Consolidated Total Assets of the Parent Borrower and its Subsidiaries at such date, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds in excess of the greater of $75,000,000 and 5.0% of Consolidated Total Assets of the Parent Borrower and its Subsidiaries at such date, and an amount equal to all Net Cash Proceeds received thereafter in such fiscal year, shall be applied on such date of receipt toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(c); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(c).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b). The application of any prepayment pursuant to this Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Term Benchmark Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(ed) The TotalAdditional Term B Commitment Notwithstanding any provision to the contrary in this Agreement, the following amounts shall be excluded from the calculation of the amount of Net Cash Proceeds from any Asset Sale or Recovery Event, as applicable:
(i) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, as applicable, the distribution of which by a Foreign Subsidiary to the Parent Borrower or a Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary is prohibited or delayed by applicable local law. Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this Section 2.12(d)(i) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b), so long, but only so long, as the applicable local law will not permit a distribution of those funds by the Foreign Subsidiary (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable by the applicable law to eliminate such limitations). Once the distribution of any of such affected Net Cash Proceeds is permitted under the applicable local law, the Parent Borrower shall prepay the Term Commitments Loans (not later than five (5) Business Days after such distribution is permitted) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 60 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(d)(ii) precludes such prepayment; and
(ii) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, in each Lender) shall terminate case, to the extent that the Parent Borrower has determined in its entirety reasonable judgment that the distribution of any of or all such items to the Parent Borrower or any Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary would have any adverse tax consequence. Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this Section 2.12(d)(ii) will not be required to be applied to repay Loans at 5:00 p.m.the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b). Once the Parent Borrower determines in its reasonable judgment that a distribution of any of such affected Net Cash Proceeds would cease to result in adverse tax consequences, New York City timethe Parent Borrower shall prepay the Term Loans (not later than five (5) Business Days after such determination) by an amount equal to such portion of such affected amount, on except, for the Closingupon funding on avoidance of doubt, to the Amendment No.1extent that a Reinvestment Notice has been or shall be validly delivered pursuant to Section 2.12(b) in respect of such Net Cash Proceeds or to the extent Section 2.12(c)(i) precludes such prepayment. Notwithstanding anything to the contrary in this Section 2.12, in no event shall any Group Member be required to repatriate cash of Non-Domestic Subsidiaries to the United States or include such amounts in any mandatory prepayment formula in respect of any obligations of the Parent Borrower or any of its U.S. Subsidiaries arising out of the Loan Documents.
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Mandatory Prepayments. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d), provided, however, that the foregoing requirements of this paragraph (a)(ii) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date SuperHoldings, Holdings, the Borrower or any Group Member of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Borrower, or $2,000,000 in any fiscal year of the Borrower immediately succeeding a fiscal year of the Borrower as of the last day of which the Consolidated Leverage Ratio is less than or equal to 4.0 to 1.0, 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 as set forth in Section 4.2(d2.12(d).
(2) Notwithstanding ; and provided further, that notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the such Net Cash Proceeds of any Asset Sale or any Recovery Event by which are not subject to a Foreign Subsidiary giving rise Reinvestment Notice shall not be required to mandatory be applied toward the prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, Term Loans until the calculation date upon which the aggregate amount of such Net Cash Proceeds shall be reduced received by the amount so prohibited or delayed; providedSuperHoldings, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of LawHoldings, the Group Members Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans shall be treated as having received Net Cash Proceeds equal to the amount of such reductionexceed $1,000,000.
(c) The Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending March 31, 2005, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten (10) days three months after the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Loans. The application of any prepayment pursuant to this Section 4.8 and first, 2.12 shall be made first to Base Rate Loans and, second, and second to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.. Partial prepayments of the Term Loans pursuant to this Section 2.12 shall be applied in the order set forth in Section 2.18
(e) If, at any time the Total Revolving Extensions of Credit exceeds the lesser of (A) the Borrowing Base in effect on such date and (B) the Total Revolving Credit Commitments, the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(f) If, at any time the Total Incremental Revolving Extensions of Credit exceeds the Total Incremental Revolving Credit Commitments, the Borrower shall repay the Incremental Revolving Credit Loans to the extent of such excess.
(g) The TotalAdditional Term B Commitment (and the Term Commitments Borrower agrees that during each calendar year there shall be a period of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1least 30 consecutive days during which there are no Revolving Extensions of Credit outstanding.
Appears in 1 contract
Sources: Credit Agreement (Nebraska Book Co)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred by the Company or issued by any Group Member after the Closing Date of its Restricted Subsidiaries (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.02), then not later than the next Business Day following such incurrence, the Term Loans shall be prepaid by an amount equal to 100% the amount of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d)incurrence.
(1b) If on any date following the Closing Date the Company or any Group Member of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice the Company intends to acquire or repair assets useful in the business of, or otherwise reinvest in, the Company and its Restricted Subsidiaries with all or any portion of the relevant Net Cash Proceeds, not later than the fifth Business Day following the receipt by the Company or such Subsidiary of such Net Cash Proceeds, the Term Loans shall be delivered in respect thereof, prepaid by an amount equal to 100% the amount of such Net Cash Proceeds; provided that (i) any such prepayment shall only be required with the aggregate amount of Net Cash Proceeds shall be applied on such date toward the prepayment from any Asset Sale or Recovery Event received in any fiscal year of the Term Loans as set forth Company in Section 4.2(d); provided thatexcess of $20,000,000, (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date, 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 shall be applied toward and (iii) the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation aggregate amount of Net Cash Proceeds that the Company may apply to the acquisition or repair of assets useful in the business of, or otherwise reinvest in, the Company and its Restricted Subsidiaries, in lieu of prepaying the Term Loans following the Closing Date shall be reduced by not exceed $150,000,000 (excluding amounts specified in the amount so prohibited or delayed; providedpreceding clause (i)), provided however that once such repatriation of any such affected Net Cash Proceeds is permitted under from a Specified Disposition shall not be subject to any reinvestment rights and shall instead be applied in its entirety to prepay the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionTerm Loans.
(c) The Borrower shallNot 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 each the relevant Excess Cash Flow Application Date, apply the Term Loans shall be prepaid by an amount equal to (x) the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period orminus (y) voluntary payments of Term Loans (including Incremental Term Loans) under Section 2.11, at Credit Agreement Refinancing Debt that is secured on a pari passu basis with the option of Obligations and Revolving Credit Loans (to the Borrowerextent accompanied by a permanent commitment reduction), on in each case during such fiscal year or following such fiscal year and prior to such Excess Cash Flow Application DateDate to the extent not previously deducted pursuant to this clause (y) in any prior period, toward but only to the prepayment extent that such prepayments are not made with the proceeds of the Term Loans as set forth in Section 4.2(dlong-term Indebtedness (other than revolving Indebtedness). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days five Business Days after the earlier of the date on which the financial statements of the Company referred to in in Section 7.1(a) 6.01(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, (i) are required to be delivered to the LendersLenders and (ii) are actually delivered.
(e) In the event of any termination of all the Revolving Credit Commitments, each Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Credit Loans and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and each Issuing Lender with respect to) all outstanding Letters of Credit issued by such Issuing Lender. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the sum of (i) the aggregate Committed Credit Exposure of all the Revolving Credit Lenders plus (ii) the outstanding aggregate principal amount or Assigned Dollar Value of all Competitive Loans made by all the Revolving Credit Lenders plus (iii) 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 and (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 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) Amounts 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 material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) such repatriation or any distribution of the relevant amounts would result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in connection 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 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 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 Proceeds received by such Foreign Subsidiary or Excess Cash Flow attributable to any such Foreign Subsidiary.
(g) All prepayments made pursuant to this Section 4.2 2.12 shall be subject to Section 2.21, but shall otherwise be without premium or penalty, and shall be accompanied by accrued interest on the principal amount to be repaid to but excluding the date of payment. (h) Each prepayment of Term Loans pursuant to this Section 2.12 shall be applied to the prepayment remaining scheduled installments of the Term Loans as directed by the Company and in the absence of such direction, to the remaining scheduled installments of the Term Loans in accordance with direct order of maturity.
(i) The Company shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 4.8 and first2.12, to Base Rate Loans and, second, to Eurodollar Loansa certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.
(j) With respect to any mandatory prepayments of the Term Loans under this Section 4.2 shall be accompanied 2.12 (other than Section 2.12(a), 2.12(b) (only with respect to a Specified Disposition) and 2.12(c)), each Term Loan Lender may reject all or a portion of its Term Loan Percentage, or other applicable share provided for under this Agreement, of such mandatory prepayment of Term Loans (such declined amounts, the “Declined Proceeds”) by accrued interest providing written notice (each, a “Rejection Notice”) to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (Administrative Agent and the Term Commitments of each Lender) shall terminate in its entirety at Company no later than 5:00 p.m., New York City time, on two Business Days after the Closingupon funding on date of such Lender’s receipt of notice from the Amendment No.1Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Loan Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Subject to the terms of this Agreement, any Declined Proceeds remaining shall be retained by the Company.
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Mandatory Prepayments. (a) If any Capital Stock or Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (other than (i) any Capital Stock issued by Holdings to the ESOP pursuant to the ESOP Documentation, (ii) equity contributions to the Borrower or any Subsidiary of the Borrower made by Holdings or any Subsidiary of Holdings or (iii) Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash -------- Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) . Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of Term Loans shall be prepaid with the Net Cash Proceeds of any Disposition of Property by any Group Member to the extent that absent such prepayment the Borrower would be required to make an "Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment Offer" pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, as defined in the Seller Senior Subordinated Note or the Senior Subordinated Notes Indenture as a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount result of such reductionDisposition.
(c) The If, for any fiscal year of Holdings commencing with the fiscal year ending on or about December 30, 2002, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten (10) days five Business Days after the --------------------------------- date on which the financial statements of Holdings referred to in Section 7.1(a) ), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment of the Term Loans only, and the Borrower shall be entitled to retain any such amounts after the repayment in accordance with full of the Term Loans. The application of any prepayment pursuant to Section 4.8 and 4.2 shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. ----- ------ Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding anything to the contrary in Section 4.2(d) or 4.8, with respect to 50% of the amount of any mandatory prepayment described in Section 4.2 that is allocated to Tranche B Term Loans (such amounts, the "Tranche B Commitment Prepayment Amount"), at any time when Tranche A Term Loans remain --------------------------- outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in paragraph (and the Term Commitments of each Lenderd) shall terminate in its entirety at 5:00 p.m., New York City timeabove, on the Closingupon funding date specified in Section 4.2 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as ------------------------ practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrower to prepay on the Amendment No.1date (each a "Mandatory Prepayment Date") that is 10 Business Days ------------------------- after the date of the Prepayment Option Notice, the Tranche B Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B
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Mandatory Prepayments. (a) If any Capital Stock or Indebtedness shall be issued or incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)Consolidated Entity, an amount equal to 50% of the Net Cash Proceeds, in the case of an issuance of Capital Stock (other than (i) to another Consolidated Entity, (ii) as permitted under Section 6.03, (iii) pursuant to employee and director compensation plans or (iv) otherwise for Net Cash Proceeds in an aggregate amount up to $10,000,000), and 100% of the Net Cash Proceeds thereof Proceeds, in the case of an issuance or incurrence of Indebtedness (other than as permitted under Section 6.01), shall be applied on the date of such issuance or incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.14(e); provided that no prepayment shall be required to be made pursuant to this subsection (a) if the Leverage Ratio on the last the day of the fiscal quarter most recently ended is 2.00 to 1.00 or less.
(1b) If on any date any Group Member Consolidated Entity shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 10050% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.14(e); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionLoans.
(c) The If, for any fiscal year of the Parent Borrower and its Domestic Subsidiaries commencing with the fiscal year ending December 24, 2005 there shall be Excess Domestic Cash Flow, the Parent Borrower shall, on each the relevant Excess Domestic Cash Flow Application Date, apply the ECF EDCF Percentage of the excess, if any, of (i) such Excess Domestic Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.14(e). Each such prepayment shall be made on a date (an “Excess Domestic Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Consolidated Entities referred to in Section 7.1(a5.01(a) for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(d) If on any date any Consolidated Entity shall receive Net Cash Proceeds in connection with any Receivables Financing Program then such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 2.14(e).
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.14 shall be applied applied, first, to the prepayment of the Existing Term Loans and, second to the prepayment of the Canadian Term Loans and the UK Term Loans ratably according to the respective outstanding amounts thereof, in each case to the remaining installments thereof as directed by the Parent Borrower and in accordance with Section 4.8 and 2.21(b). Prepayments shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment , in the case of the Existing Term Loans under this Section 4.2 shall be accompanied by Loans, and in each case, together with accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (prepaid and the principal amount of Term Commitments Loans and accrued interest thereon to be paid by the applicable Borrower pursuant to any such prepayment shall not exceed in the aggregate the applicable portion of each Lender) shall terminate in its entirety at 5:00 p.m.Net Cash Proceeds or Excess Domestic Cash Flow, New York City timeas the case may be, on the Closingupon funding on the Amendment No.1with respect to such prepayment.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)
Mandatory Prepayments. (ai) If Within five (5) days following the date of receipt by a Credit Party of any Indebtedness shall be incurred or issued by net cash proceeds in excess of $1,000,000 in the aggregate in any Group Member after the Closing Date Fiscal Year from any Asset Sales (other than Excluded Indebtednessany Permitted Dispositions (except pursuant to clause (iii) of such definition)), the Borrower shall prepay the Secured Note and LC Note in an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(1) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an aggregate amount equal to 100% of such Net Cash Proceeds net cash proceeds. For purposes hereof, net cash proceeds of a transaction will be the cash proceeds received by a Credit Party from the transaction as reduced by the costs, fees and expenses incurred by it in negotiating and consummating the transaction.
(ii) Within five (5) days following the date of receipt by a Credit Party, or the Lender as loss payee, of any net cash proceeds from any Destruction or Taking, the Borrower shall prepay the Secured Note and LC Note in an aggregate amount equal to 100% of such net cash proceeds, provided, so long as no Event of Default (or event or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) shall have occurred and be continuing on the date of receipt thereof or caused thereby, Borrower shall have the option to apply such net cash proceeds, prior to the date that is 180 days following receipt thereof, for purposes of the repair, restoration or replacement of the applicable assets thereof, and any net cash proceeds so applied shall not be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d)Secured Note or LC Note.
(2iii) Notwithstanding Within five (5) Business Days following the foregoing, to date of receipt by the extent that (and for so long as) any of or all of the Net Cash Proceeds Borrower of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements net cash proceeds in an offering of Law from being repatriated to the jurisdiction of organization Equity Interests of the Borrower, the calculation of Net Cash Proceeds Borrower shall be reduced by prepay the Secured Note and LC Note in an aggregate amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to fifty percent (50%) of the amount gross proceeds of such reductionequity offering; provided that the Borrower shall prepay the Secured Note and LC Note in an amount equal to $5,000,000 from the net cash proceeds of the Qualifying Offering.
(civ) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of Within five (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (105) days after following the date on which of receipt by a Credit Party of any net cash proceeds from the financial statements referred to in Section 7.1(a) for the fiscal year incurrence of the Borrower any Indebtedness of a Credit Party (other than with respect to which Permitted Indebtedness), the Borrower shall prepay the Secured Note and LC Note in an aggregate amount equal to 100% of such prepayment is made are required to be delivered to the Lendersnet cash proceeds.
(dv) Amounts No later than five (5) days following the date of receipt a Credit Party of any Extraordinary Receipts, the Borrower shall prepay the Secured Note and LC Note in an aggregate amount equal to 100% of such Extraordinary Receipts; provided that no payment shall be applied in connection with prepayments made required pursuant to this Section 4.2 shall be applied to 2.3(c)(v) unless the amount of Extraordinary Receipts received on such date exceeds $1,000,000 in the aggregate in any Fiscal Year.
(vi) Concurrently with any prepayment of the Term Loans in accordance with Secured Note and LC Note pursuant to this Section 4.8 and first, 2.3(c) the Borrower shall deliver to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment the Lender a certificate of an authorized officer thereof demonstrating the calculation of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to amount of the date of such prepayment on the amount prepaidapplicable proceeds.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Financing Agreement (Midwest Energy Emissions Corp.)
Mandatory Prepayments. (a) i. If any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2) shall be incurred by Holdings, the Borrower or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)Restricted Subsidiary, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on no later than one Business Day after the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1) ii. If on any date Holdings, the Borrower or any Group Member Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered to the Administrative Agent in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on not later than five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that, notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (y) on the date (the “Trigger Date”) that is six months after any such Reinvestment Prepayment Date, the Term Loans shall be applied prepaid as set forth in Section 2.12(d) by an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date; provided that unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sales or Recovery Events, after giving effect to the reinvestment rights set forth herein, exceeds $25,000,000 in any fiscal year of the Borrower, no such prepayment shall be required pursuant to this Section 2.12(b).
iii. If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2017, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the Excess Cash Flow Percentage of such Excess Cash Flow minus (ii) the sum of (A) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such fiscal year (other than to the extent made with the proceeds of the incur rence of Indebtedness) and solely to the extent accompanied by permanent optional reductions of the Revolving Commitments and (B) all optional prepayments of Term Loans during such fiscal year (including optional prepayments pursuant to Section 2.11(b)), in each case other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness, toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) iv. Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and first2.18(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 Base Rate the then outstanding Term Loans andbeing prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurocurrency Loans; provided that if no Lender exercises the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.12(e), secondthen, with respect to Eurodollar Loanssuch mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurocurrency Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.21. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
v. Each Lender may elect (e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m.sole discretion) to decline all (but not less than all) of its pro rata share (such amount, New York City timethe “Declined Proceeds”) of any mandatory prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 a.m., on the Closingupon funding date that is three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. If a Lender fails to deliver a notice of election declining receipt of its pro rata share of such mandatory prepayment to the Administrative Agent within the time frame specified above, any such failure will be deemed to constitute an acceptance of such Lender’s pro rata share of the total amount of such mandatory prepayment of Term Loans. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any Declined Proceeds by any Lender shall be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with the terms of this Agreement.
vi. On each occasion that Permitted Other Indebtedness is issued or incurred pursuant to Section 7.2(aa), the Borrower shall within three Business Days of receipt of the Net Cash Proceeds of such Permitted Other Indebtedness prepay Term Loans in an aggregate principal amount equal to 100% of the Net Cash Proceeds from such issuance or incurrence of Permitted Other Indebtedness.
vii. Beginning on the Amendment No.1Closing Date, the Borrower shall apply 100% of all cash proceeds net of all fees, commissions, costs and other expenses, from any issuance or incurrence of Refinancing Term Loans and Replacement Revolving Facility Commitments (other than solely by means of extending or renewing then existing Refinancing Term Loans and Replacement Revolving Facility Commitments without resulting in any net proceeds), no later than three (3) Business Days after the date on which such Refinancing Term Loans and/or Replacement Revolving Facility Commitments are incurred, to prepay Term Loans and/or Revolving Commitments in accordance with Section 2.29.
viii. In the event and on such occasion that the total outstanding Revolving Extensions of Credit exceed the total Revolving Commitments, the Borrower shall prepay Revolving Loans and/or Swingline Loans (or, if no such Loans are outstanding, deposit in a cash collateral account opened by the Administrative Agent an amount equal to the necessary aggregate then undrawn and unexpired amount of such Letters of Credit) made to the Borrower, in an aggregate amount equal to the amount by which the Revolving Extensions of Credit exceed the total Revolving Commitments. Each prepayment shall be applied to the Revolving Loans included in the repaid Loans such that each Revolving Lender receives its ratable share of such prepayment (based upon the respective Aggregate Exposures of the Revolving Lenders at the time of such prepayment).
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Mandatory Prepayments. (a) [Reserved].
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Excluded Credit Agreement Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect within three Business Days after receipt thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on after such date third Business Day toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e); provided that, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 4.2(d2.12(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to Borrower commencing after the jurisdiction of organization end of the Borrowerfiscal year ending December 31, 2021, there shall be Excess Cash Flow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage difference of the excess, if any, 50% of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period orminus the aggregate amount of any voluntary prepayments (including Discounted Prepayments made pursuant to Section 2.29 and assignments to Holdings, at the option Borrower or any Subsidiary made pursuant to 10.6(h), with the amount of such prepayment being equal to the Borroweramount actually paid by the Borrower (or Holdings or any Subsidiary, on or prior such Excess Cash Flow Application Date, toward the prepayment as applicable)) of the Term Loans or to the extent the Revolving Commitment is permanently reduced by an amount equal to such payment, any voluntary prepayments of the Revolving Loans, made during such year; provided that such percentage shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as set forth in Section 4.2(d)of the last day of such fiscal year is less than or equal to 3.00 to 1.00 but greater than 2.00 to 1.00 and (ii) 0% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 2.00 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than ten the earliest of three Business Days after (10i) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders, and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans in(ratably to the Term A Loan and the Term B Loan) in direct order of maturity for the next four scheduled payments of Term Loans required under Section 2.3, and then ratably to the remaining scheduled installments due in respect of the Term Loans in accordance with Section 4.8 Sections 2.3 and 2.18(b) (provided that any Term Lender may decline any such prepayment (other than any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness) (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed first, to Base Rate the prepayment, on a pro rata basis, of the Term Loans and, held by Term Lenders that have elected to accept such Declined Amounts; second, to Eurodollar Loansthe extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans in accordance with Section 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); third, to the extent of any residual, if no Term Loans or Revolving Loans remain outstanding, to the deposit of an amount in cash (in an amount not to exceed 105% of the then existing L/C Exposure) in a cash collateral account for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender; and fourth, to the extent of any residual, retained by the Borrower. Each prepayment of the Term Loans under this Section 4.2 2.12 (except in the case of Revolving Loans that are ABR Loans and Swingline Loans, in the event all Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than three (3) Business Days prior to the date such prepayment shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of such prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile not later than one (1) Business Day prior to the Mandatory Prepayment Date.
(ef) The TotalAdditional Term B Commitment Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction.
(g) No prepayment fee or other penalty or premium shall be payable in respect of any mandatory prepayments made pursuant to this Section 2.12.
(h) Notwithstanding any provisions of this Section 2.12 to the contrary, to the extent the Borrower determines, acting in good faith, that any repatriation or distribution (or deemed repatriation or deemed distribution for tax purposes) to the Borrower of Net Cash Proceeds or Excess Cash Flow described in this Section 2.12 that are attributable to any Subsidiary would reasonably be expected to result in material adverse Tax consequences to any Group Member (as determined by the Borrower in good faith), or would be prohibited or restricted by applicable Requirements of Law, or applicable Operating Documents or material agreements of such Subsidiary, the applicable Net Cash Proceeds or Excess Cash Flow shall not be required to be so repatriated or distributed and the Term Commitments relevant amounts shall not be required to be prepaid in accordance with this Section 2.12. To the extent that the relevant adverse Tax consequences, restrictions imposed by Requirements of Law or restrictions set forth in the applicable Operating Documents or material agreements, in each Lendercase, would no longer be applicable at any time in the twelve (12) month period following the day that the relevant amounts would otherwise be required to be prepaid pursuant to this Section 2.12, the Borrower shall terminate cause such amounts to be prepaid as and to the extent otherwise required pursuant to this Section 2.12. The Borrower will use commercially reasonable efforts to avoid or mitigate any material adverse Tax consequences, restrictions imposed by Requirements of Law and restrictions set forth in its entirety at 5:00 p.m.the applicable Operating Documents or material agreements, New York City timein each case, on that would otherwise limit an obligation of the Closingupon funding on Borrower to make a mandatory prepayment in accordance with the Amendment No.1terms of this Section 2.12.
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Mandatory Prepayments. (a) If any Capital Stock shall be issued by any Group Member, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.7(e).
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 4.2(d2.7(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 4.2(d2.7(e); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 4.2(d2.7(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Borrower commencing with the fiscal year ending December 31, 2010, there shall be Excess Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the BorrowerFlow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 4.2(d2.7(e). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.7 shall be applied applied, to the extent that no Term Loans are then outstanding, to the prepayment of Revolving Loans without an accompanying reduction of the Revolving Commitments; otherwise, first, to the prepayment of the Term Loans in accordance with and, second, to the prepayment of Revolving Loans without an accompanying reduction of the Revolving Commitments. The application of any prepayment pursuant to Section 4.8 and 2.7 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Euro-dollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.7 (except in the case of Revolving Loans that are ABR Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Mandatory Prepayments. (a) If any Indebtedness that is senior and is secured by the same assets securing the obligations under this Agreement shall be issued or incurred or issued by any Group Member after the Closing Date by any Loan Party (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 6.2(a) through (m)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied applied, on the date of such issuance or incurrence or issuance or, if later, the date on which such payment may be applied to the Loans in accordance with the terms of the Exit Facility Agreement, in either case, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.5(d).
(1b) If on any date any Group Member 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, an amount equal to 100% of then such Net Cash Proceeds shall be applied on no later than three (3) Business Days following such date or, if later, the date on which such payment may be applied to the Loans in accordance with the terms of the Exit Facility Agreement, in either case, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.5(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The If, for any fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2004, there shall be Excess Cash Flow in excess of $5,000,000, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage 75% of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option in excess of the Borrower, on or prior such Excess Cash Flow Application Date, $7,500,000 toward the prepayment of the Term Loans as set forth in Section 4.2(d2.5(d). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ten (10) five days after the latest to occur of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 5.1(a), for the fiscal year of the Borrower period with respect to which such prepayment is made made, are required to be delivered to the Lenders, (ii) the date such financial statements are actually delivered and (iii) the date on which such payment may be applied to the Loans in accordance with the terms of the Exit Facility Agreement.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.5 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
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Sources: Senior Term Loan and Guarantee Agreement (Gentek Inc)
Mandatory Prepayments. (a) 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 Holdings or issued by any Group Member after the Closing Date (other than Excluded Indebtedness)of its Restricted Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on not later than one Business Day after the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans or New Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Group Member Loan Party shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on not later than five Business Days after such date toward the prepayment of the Term Loans or New Term Loans as set forth in Section 4.2(d2.12(d); provided that, that notwithstanding the foregoing, (x) on each Reinvestment Prepayment Date, the Term Loans or New Term Loans shall be prepaid as set forth in Section 2.12(d) by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward and (y) on the prepayment of date (the “Trigger Date”) that is one year after any such Reinvestment Prepayment Date, the Term Loans or New Term Loans shall be prepaid as set forth in Section 4.2(d).
(22.12(d) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the an amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such reductionTrigger Date.
(c) The Borrower Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of Holdings commencing with the fiscal year ending September 30, 2013, there shall be Excess Cash Flow, Holdings shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of an amount equal to (i) the Excess Cash Flow for the related Percentage of such Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such Excess Cash Flow Payment Period or, at fiscal year to the option extent accompanied by permanent optional reductions of the BorrowerRevolving Commitments and all optional prepayments of the Term Loans or New Term Loans during such fiscal year, on or prior in each case other than to the extent any such Excess Cash Flow Application Dateprepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the Term Loans or New Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements of Holdings referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans or New Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each prepayment of the Term Loans or New Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment If as of the last Business Day of each calendar month (computed by the Administrative Agent using the current exchange rate as of such Business Day and promptly notified to the Multicurrency Revolving Lenders and the Borrower) the Dollar Amount of the aggregate outstanding principal amount of the Revolving Loans shall exceed 105% of the aggregate Revolving Commitments, the Borrower shall, within five Business Days after the Borrower’s receipt of such notice, prepay Multicurrency Revolving Loans in such amounts as shall be necessary so that after giving effect thereto the aggregate outstanding principal amount of such Revolving Loans does not exceed the Revolving Commitments as of such Business Day.
(f) Notwithstanding anything to the contrary in Sections 2.12(d) or 2.18, with respect to the amount of any mandatory prepayment pursuant to this Section 2.12 that is allocated to Tranche B Term Commitments Loans and/or any Tranche of New Term Loans (such amount for such Class, the “Prepayment Amount”, and each Lendersuch Class, an “Applicable Class”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such Prepayment Amount to the Applicable Class of Term Loans as provided in paragraph (d) shall terminate in its entirety at 5:00 p.m., New York City timeabove, on the Closingupon funding date specified in this Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Lender and each New Term Lender a notice substantially in the form of Exhibit L (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Lender and each New Term Lender a Prepayment Option Notice, which shall be in a form reasonably satisfactory to the Administrative Agent, and shall include an offer by the Borrower to prepay, on the Amendment No.1date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, each Applicable Class of Loans of such Lender by an amount equal to the portion of the Prepayment Amount for such Class indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Applicable Class of Term Loans. Each
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Mandatory Prepayments. (ai) If the Borrower or any Indebtedness 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 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 incurred received by the Borrower or issued such Subsidiary in respect thereof) and, promptly upon receipt by any Group Member after the Closing Date (other than Excluded Indebtedness)Borrower or such 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 the Borrower not exceeding $100,000 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 the 726721136.8 18564250 Borrower states in its notice of such event that the 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 the 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, the Borrower shall notify Bank whether the 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, 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 on in the date case of a Disposition or Event of Loss with respect to any Property other than the Mortgaged Premises, first to the outstanding Term Loan until paid in full and then to the Revolving Loans. If Bank so requests, all proceeds of such incurrence Disposition or issuance toward Event of Loss shall be deposited with Bank (or its agent) and held by it in the prepayment Collateral Account to be disbursed to or at the Borrower’s direction for application to or reimbursement for the costs of the Term Loans as set forth in Section 4.2(d)replacing, rebuilding or restoring such Property.
(1ii) If on after the Closing Date, the Borrower or any date any Group Member Subsidiary shall receive 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 or other employee stock incentive awards, the Borrower shall promptly notify Bank of the estimated Net Cash Proceeds from any Asset Sale of such issuance to be received by or Recovery Event then, unless a Reinvestment Notice shall be delivered 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, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds; provided that, so long as (x) no Default or Event of Default exists or would result therefrom and (y) the Borrower is in compliance with each of the financial covenants set forth in Section 7.13 on a pro forma basis as of the fiscal quarter then last ended for which financial statements have been delivered after giving effect to such issuance, this subsection shall not require any such prepayment with respect to such Net Cash Proceeds (an “Unrestricted Equity Raise”). The amount of each such prepayment shall be applied on such date toward first to the prepayment outstanding Term Loan until paid in full and then to the Revolving Loans. The 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 Term Loans as set forth in Section 4.2(d); provided that, notwithstanding Loan Documents.
(iii) If after the foregoing, on each Reinvestment Prepayment Closing Date, the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 7.1, the Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance 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, the 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 Loan until paid in full and then to the Revolving Loans. The Borrower 726721136.8 18564250 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, the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance 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, the 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 Loan until paid in full and then to the Revolving Loans. The 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 prepay the Obligations by an amount equal to (x) 50% of Excess Cash Flow of the Reinvestment Prepayment Amount with respect to Borrower and its Subsidiaries minus (y) the relevant Reinvestment Event shall be applied toward the prepayment aggregate amount of all optional prepayments of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding Loan for the foregoingmost recently completed fiscal year of the Borrower, commencing with the fiscal year of the Borrower ending December 31, 2018, within 120 days after the end of such fiscal year; provided, however, to the extent that (the Total Leverage Ratio as of both the last day of such fiscal year and for so long as) any of or all the last day of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated fiscal quarter ending immediately prior to the jurisdiction end of organization such fiscal year is less than 1.75 to 1.00 and no Default or Event of Default has occurred and is continuing, the amount of prepayment that is otherwise required under this Section to be made from the Borrower, the calculation of Net ’s Excess Cash Proceeds Flow shall be reduced by the to 0%. The amount so prohibited or delayed; provided, that once of each such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members prepayment shall be treated as having received Net Cash Proceeds equal applied first to the amount of such reductionoutstanding Term Loan until paid in full and then to the Revolving Loans.
(cvi) The Borrower shall, on each Excess date the Revolving Credit Commitment is reduced pursuant to Section 2.13, prepay the Revolving Loans and, if necessary, Cash Flow Application Date, apply Collateralize the ECF Percentage of L/C Obligations by the excessamount, if any, of (i) Excess Cash Flow for necessary to reduce the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option sum of the Borrower, on or prior such Excess Cash Flow Application Date, toward aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on amount to which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the LendersRevolving Credit Commitment has been so reduced.
(dvii) Amounts 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 Revolving Credit Commitment, the Borrower shall immediately and without notice or demand pay over the amount of the excess to be applied in connection Bank as and for a mandatory prepayment on such Obligations, with prepayments made pursuant each such prepayment first to this Section 4.2 shall be applied to the prepayment Revolving Loans until paid in full with any remaining balance to be applied to Cash Collateralize the L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of the Term Loans in accordance with under this Section 4.8 and first, 2.8(b) shall be applied first to Borrowings of Base Rate Loans and, second, until payment in full thereof with any balance applied to Borrowings of Eurodollar LoansLoans in the order in which their Interest Periods expire. Each prepayment of the Term Loans under this Section 4.2 2.8(b) shall be accompanied made by the payment of the principal amount to be prepaid and, in the case of the 726721136.8 18564250 Term Loan or any Eurodollar Loans, accrued interest thereon to the date of such prepayment on the amount prepaidtogether with any amounts due Bank under Section 3.3.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1
Appears in 1 contract
Sources: Credit Agreement (Cynergistek, Inc)
Mandatory Prepayments. (a) If any Indebtedness shall be incurred or issued Subject to clause (b) below, upon receipt by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% Warnaco Entity of the Net Cash Proceeds thereof Proceeds, the Borrower shall be applied on within one Business Day after such receipt prepay the date Loans (or provide cash collateral in respect of such incurrence or issuance toward the prepayment Letters of the Term Loans Credit as set forth in Section 4.2(d).
clause (1c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered below) in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d); provided thatclause (c) below.
(b) Notwithstanding clause (a) above, notwithstanding as long as no Event of Default shall have occurred or be continuing on the foregoingdate Net Cash Proceeds are received by any Warnaco Entity, on each the Borrower shall not be required to so apply Net Cash Proceeds arising from:
(i) a Reinvestment Prepayment Event to the extent that all Net Cash Proceeds from all Reinvestment Events do not exceed $50,000,000 (in the aggregate since the Closing Date) and are actually used (or have been contractually committed to be used) to consummate a Permitted Acquisition or to purchase replacement or fixed assets (in the case of an Asset Sale) or repair or replace (in the case of a Property Loss Event) the sold, damaged or taken property within 180 days of the receipt of such Net Cash Proceeds by a Warnaco Entity and, pending application of such proceeds, the Borrower has either (A) paid an amount equal to such Net Cash Proceeds to the Administrative Agent to be held in a Cash Collateral Account designated by the Administrative Agent or (B) has applied an amount equal to such Net Cash Proceeds in repayment of the Loans and the Administrative Agent has established an Availability Reserve in the amount of such repayment which reserve shall ▇▇▇▇▇ on the Reinvestment Prepayment Amount with respect Date applicable to such Net Cash Proceeds or earlier to the relevant Reinvestment Event shall be applied toward extent Loans up to the prepayment amount of the Term Loans such Net Cash Proceeds are used as set forth in Section 4.2(d).
the Reinvestment Notice with respect thereto; provided, however, that to the extent any asset subject to such Asset Sale or Property Loss Event constituted Collateral, any replacement, fixed or alternative assets acquired with Net Cash Proceeds shall, upon acquisition thereof by a Warnaco Entity, be subject to a first priority perfected Lien in favor of the Administrative Agent for the benefit of the Secured Parties (2) Notwithstanding but only, in the foregoingcase of a Permitted Acquisition, to the extent that required by clause (and for so long ase) any of or all of the Net definition thereof); provided further, however, in the event an Event of Default has occurred and is continuing after the provisions in this clause (i) become operative, the Administrative Agent may, or shall at the direction of the Requisite Lenders, have the right to apply all amounts in the Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise Collateral Account referred to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated above to the jurisdiction of organization Obligations and to terminate the Availability Reserve referred to above, and to effect an immediate reduction of the Borrower, Commitments of the calculation of Net Cash Proceeds shall be reduced by the Lenders (in accordance with their respective Ratable Portions) in an amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionCash Collateral plus the amount of such Availability Reserve;
(ii) an issuance of Take-Out Securities to the extent the Net Cash Proceeds thereof are applied to permanently repay or repurchase the Second Lien Notes (plus any interest owed under the Second Lien Notes and any cash costs associated with the issuance of any Take-Out Securities (including underwriting fees, attorneys' fees, advisors' fees, investment bank fees and taxes)) in an amount equal to the Dollar Equivalent of such Net Cash Proceeds.
(c) The Subject to Section 2.13(h), any prepayments made by the Borrower shallrequired to be applied in accordance with this clause (c) shall be applied as follows: first, on each Excess Cash Flow Application Date, apply to repay the ECF Percentage outstanding principal balance of the excessSwing Loans until such Swing Loans shall have been repaid in full; second, if any, of (i) Excess Cash Flow for to repay the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option outstanding principal balance of the BorrowerRevolving Loans until such Revolving Loans shall have been repaid in full; and then, on or prior such Excess Cash Flow Application Date, toward to provide cash collateral for any Letter of Credit Obligations in the prepayment of the Term Loans as manner set forth in Section 4.2(d). Each 9.3 until all such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after Letter of Credit Obligations have been fully cash collateralized in the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the Lendersmanner set forth therein.
(d) Amounts If at any time, the aggregate principal amount of Outstandings exceed the Maximum Credit at such time, the Borrower shall, as soon as possible, but in any event within one Business Day, prepay the Swing Loans first and then the Revolving Loans then outstanding in an amount equal to be applied such excess. If any such excess remains after repayment in connection with prepayments made pursuant to this full of the aggregate outstanding Swing Loans and the Revolving Loans, the Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 4.2 shall be applied 9.3 to the prepayment of the Term Loans in accordance with Section 4.8 and first, extent required to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of eliminate such prepayment on the amount prepaidexcess.
(e) Except in the case where Section 2.13(h) shall be applicable, all available funds in each Cash Collateral Account (other than an amount equal to any proceeds arising from a Reinvestment Event that are held in the Cash Collateral Account pending application of such proceeds as specified in a Reinvestment Notice) shall be applied on a daily basis: first to repay the outstanding principal amount of the Swing Loans until such Swing Loans have been repaid in full; second, to repay the outstanding principal amount of the Revolving Loans until such Revolving Loans have been repaid in full; and then to any other Obligation then due and payable. The TotalAdditional Term B Commitment Administrative Agent agrees so to apply such funds and the Borrower consents to such application. If, following such application, there is no Event of Default that is continuing and there are no Loans outstanding and no other Obligations are then due and payable (and all outstanding Letter of Credit Obligations have been cash collateralized in the Term Commitments manner set forth in Section 9.3), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Account to be paid at the written direction of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1Borrower.
Appears in 1 contract
Sources: Senior Secured Revolving Credit Agreement (Warnaco Group Inc /De/)
Mandatory Prepayments. (a) If any Capital Stock shall be issued by the Borrower (other than Capital Stock issued in connection with the exercise by present or former employees, officers or directors under a stock incentive plan, stock option plan or other equity based compensation plan or arrangement), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans as set forth in Section 2.11(e); provided, that the foregoing percentage shall be reduced to zero in the event that the Consolidated Leverage Ratio at the end of the most recently completed fiscal quarter was not greater than 1.0 to 1.0.
(b) If any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtednessexcluding any Indebtedness incurred in accordance with Section 6.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e).
(1c) If on any date any Group Member shall receive Net Cash Proceeds (other than Excluded Net Cash Proceeds) from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e).
(2d) Notwithstanding the foregoingIf, to the extent that (and for so long as) any of or all fiscal year of the Net Borrower commencing with the fiscal year ending December 31, 2006, there shall be Excess Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the BorrowerFlow, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.11(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.1(a) 5.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the LendersLenders and (ii) the date such financial statements are actually delivered.
(de) Amounts to be applied in connection with prepayments made The application of any prepayment pursuant to this Section 4.2 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and , except in the case of a partial prepayment of a Revolving Loan that is an ABR Loan or any Swingline Loan. Mandatory prepayments of the Term Commitments of each Lender) Loans shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1be made ratably to all Term Loans.
Appears in 1 contract
Mandatory Prepayments. (ai) If the Debt to Operating Cash Flow Ratio as of the last day of any Indebtedness shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount Fiscal Year beginning with Fiscal Year 2001 is equal to 100or greater than 5.5x, then no later than the next April 30, the Borrower shall prepay an outstanding principal amount of the Term Loan A Advances equal to the Allocable Portion of 75% of Excess Cash Flow for such Fiscal Year. If the Net Debt to Operating Cash Proceeds thereof Flow Ratio as of the last day of any Fiscal Year is less than 5.5x but greater than or equal to 5.0x, then no later than the next April 30, the Borrower shall prepay an outstanding principal amount of the Term Loan A Advances equal to the Allocable Portion of 50% of Excess Cash Flow for such Fiscal Year. In each case, the Borrower shall pay the principal amount to be prepaid together with accrued interest thereon to the date of prepayment and all amounts then owing under Section 2.12 in respect of such prepayment and such prepayment shall be applied on the date to reduce ratably all then remaining unpaid installments of such incurrence or issuance toward the prepayment principal of the Term Loans as Loan A Advances (based on the schedule set forth in Section 4.2(d2.04, as the amounts therein may have been reduced from time to time, in accordance with this Agreement, due to repayments and prepayments of principal prior thereto). For purposes of this Section 2.09(b): (x) Excess Cash Flow for any Fiscal Year shall be determined on the basis of the amount of Excess Cash Flow for such Fiscal Year set forth on the certificate delivered to the Lenders pursuant to Section 5.03(t); and (y) Excess Cash Flow shall be determined using an amount for Operating Cash Flow that is calculated in accordance with the definition thereof but excluding any Total Cost Savings Add-Back (as defined in the definition of Operating Cash Flow).
(1ii) If on any date the Borrower receives the Net Proceeds of any Group Member issuance of equity securities (including, without limitation, any common stock, preferred stock, rights to subscribe for or to purchase, or any warrants or options to acquire any equity security or any instrument convertible into any equity security), then no later than the fourth Eurodollar Business Day after such date of issuance, the Borrower shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, repay an outstanding principal amount of the Term Loan A Advances equal to 100% the Allocable Portion of such Net Proceeds, provided that (A) if on or before such date of issuance the Borrower has entered into an agreement or letter of intent to make an Asset Purchase that it reasonably expects will be a Permitted Acquisition that will be consummated within 16 weeks of such date, the Borrower may defer making such repayment (to the extent of the estimated cash portion of the purchase price for such Permitted Acquisition) until the earlier of the date it consummates such Permitted Acquisition and the date 16 weeks after such date of issuance, and the principal amount of Term Loan A Advances required to be repaid shall be the Allocable Portion of the excess of such Net Proceeds (less any amount repaid concurrently with such date of issuance on account of such Net Proceeds) over the cash portion of the purchase price actually paid for such Permitted Acquisition by such date and (B) if at the date of such issuance (1) the Senior Debt to Operating Cash Flow Ratio is less than 2.0x and (2) the Borrower is in good faith considering making a redemption of any Permitted Subordinated Debt within the next 12 weeks, the Borrower may defer making such repayment (to the extent of the estimated amount to be applied to such redemption) until the earlier of the date it makes such redemption and the date 12 weeks after such date of issuance, and the principal amount of Term Loan A Advances required to be repaid shall be the Allocable Portion of the excess of such Net Proceeds (less any amount repaid concurrently with such date of issuance on account of such Net Proceeds) over the amount actually applied to redeem Permitted Subordinated Debt by such date. In any case, the Borrower shall pay the principal amount to be prepaid together with accrued interest thereon to the date of prepayment and all amounts then owing under Section 2.12 in respect of such prepayment and such prepayment shall be applied on such date toward the prepayment to reduce ratably all then remaining unpaid installments of principal of the Term Loans as Loan A Advances (based on the schedule set forth in Section 4.2(d); provided that2.04, notwithstanding as the foregoingamounts therein may have been reduced from time to time, on each Reinvestment Prepayment Datein accordance with this Agreement, an amount equal due to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment repayments of the Term Loans as set forth in Section 4.2(dprincipal prior thereto).
(2iii) Notwithstanding If, on the foregoingdate the Borrower shall issue any Permitted Subordinated Debt (other than any Refinancing Permitted Subordinated Debt), the Senior Debt to Operating Cash Flow Ratio (measured on such date after giving effect to the extent that (issuance of such Permitted Subordinated Debt and for so long as) any of or all the receipt of the Net Cash Proceeds of any Asset Sale thereof), is greater than or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall2.0x, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days then within four Eurodollar Business Days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of Borrower shall issue such Permitted Subordinated Debt, the Borrower with respect to which such prepayment is made are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied to the prepayment prepay an outstanding principal amount of the Term Loans in accordance with Section 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1Loan A Advances equal to
Appears in 1 contract
Mandatory Prepayments. (a) If Unless the Required Lenders shall otherwise agree, if any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2) shall be incurred by the Borrower or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), of its Restricted Subsidiaries an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt of such incurrence or issuance Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d).
(1b) If Unless the Required Lenders shall otherwise agree, if on any date any Group Member 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, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d); provided that, that notwithstanding the foregoing, on each 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 Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event not actually expended by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reductionTrigger Date.
(c) The Unless the Required Lenders shall otherwise agree, if, for any fiscal year of the Parent commencing with the fiscal year ending on or nearest to December 31, 2012, there shall be Excess Cash Flow, the Borrower shall, on each the relevant Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of an amount equal to (i) the Excess Cash Flow for the related Percentage of such Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made the sum of (A) the aggregate amount of all prepayments or cash collateralization of ABL Indebtedness during such Excess Cash Flow Payment Period or, at fiscal year to the option extent accompanied by permanent optional reductions of the Borrowercommitments under the ABL Facility and (B) all optional prepayments of the Term Loans during such fiscal year pursuant to Section 2.11(a), on or prior in each case other than to the extent any such Excess Cash Flow Application Dateprepayment is funded with the proceeds of new long-term Indebtedness, toward the prepayment of the Term Loans as set forth in Section 4.2(d2.12(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days Business Days after the date on which the financial statements of the Parent referred to in Section 7.1(a) 6.1(a), for the fiscal year of the Borrower with respect to which such prepayment is made made, are required to be delivered to the Lenders.
(d) Amounts to be applied in connection with prepayments made pursuant to this Section 4.2 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 4.8 and 2.18(b) until paid in full. The application of any prepayment pursuant to Section 2.12 shall be made, first, to Base Rate ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) The TotalAdditional Notwithstanding anything to the contrary in Section 2.12(d), 2.18 or 10.7, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Term B Commitment Loans (and which, for avoidance of doubt, includes any New Term Loans) (such amounts, the “Prepayment Amount”), at any time when Term Commitments Loans remain outstanding, the Borrower will, in lieu of each Lenderapplying such amount to the prepayment of Term Loans as provided in paragraph (d) shall terminate in its entirety at 5:00 p.m., New York City timeabove, on the Closingupon funding 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 J (or such other form approved by the Administrative Agent), and shall include an offer by the Borrower to prepay on the Amendment No.1date (each a “Mandatory Prepayment Date”) that is ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans. On the Mandatory Prepayment Date, the Borrower shall pay to the relevant Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted (it being understood that any Lender’s failure to object prior to the relevant Mandatory Prepayment Date shall be deemed as an acceptance by such Lender of such Prepayment Option Notice and the amount to be prepaid in respect of Term Loans held by such Lender) prepayment as described above; provided that, following such offer and application, any amount remaining unapplied shall be returned to the Borrower.
(f) Notwithstanding any other provisions of this Section 2.12, (i) to the extent that the repatriation to the United States of any Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable organizational documents or (z) prohibited, delayed or restricted any agreement permitted by Section 7.13, an amount equal to the portion of such Foreign Subsidiary Excess Cash Flow 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 so long, but only so long, as the applicable local law or applicable organizational documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts to overcome or eliminate any such restrictions on repatriation, even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Foreign Subsidiary Excess Cash Flow 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 repatriation of any of such affected Foreign Subsidiary Excess Cash Flow is permissible under the applicable local law or applicable organizational documents (even if such cash is actually not repatriated), an amount equal to the amount of the Foreign Subsidiary Excess Cash Flow that could be repatriated will be promptly (and in any event not later than two Business Days) applied (net of an amount equal to the additional taxes that would be payable or reserved against as a result of a repatriation 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 Foreign Subsidiary Excess Cash Flow would have adverse tax cost consequences with respect to such Foreign Subsidiary Excess Cash Flow, an amount equal to such Foreign Subsidiary Excess Cash Flow that would be so affected will not be subject to repayment under this Section 2.12; provided that for purposes of this Section 2.12, Excess Cash Flow shall be deemed allocable to each Foreign Subsidiary, with respect to any period, in an amount equal to (i) the Consolidated EBITDA of such Foreign Subsidiary for such period, divided by (ii) the Consolidated EBITDA of Parent and its Restricted Subsidiaries for such period (it being understood and agreed for the avoidance of doubt that such allocation shall exclude any reduction from interest and principal payments in respect of the Obligations). For the avoidance of doubt, nothing in this Agreement requires, or is intended to require, any actual repatriation of any Foreign Subsidiary Excess Cash Flow.
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Mandatory Prepayments. (a) If any Indebtedness or Disqualified Capital Stock shall be incurred or issued by any Group Member after the Closing Date (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence or issuance toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(1b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f); provided provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f).
(2) Notwithstanding the foregoing, to the extent that (and for so long as) any of or all of the Net Cash Proceeds of any Asset Sale or any Recovery Event by a Foreign Subsidiary giving rise to mandatory prepayment pursuant to Section 4.2(b)(1) (each such Asset Sale and Recovery Event, a “Specified Asset Sale”) are prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower, the calculation of Net Cash Proceeds shall be reduced by the amount so prohibited or delayed; provided, that once such repatriation of any such affected Net Cash Proceeds is permitted under the applicable local Requirements of Law, the Group Members shall be treated as having received Net Cash Proceeds equal to the amount of such reduction.
(c) The Borrower shall, on each Excess Cash Flow Application Date, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans as set forth in Section 4.2(d4.2(f). Each Except as provided below, each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) days after the date on which the financial statements referred to in Section 7.1(a) for the fiscal year of the Borrower with respect to which such prepayment is made are required to be delivered to the LendersLenders (commencing with the fiscal year of the Borrower ending October 2, 2011). Notwithstanding the foregoing, the Borrower will not be required to prepay the Loans pursuant to this clause (c) with respect to any Excess Cash Flow for the related Excess Cash Flow Payment Period attributable to a Foreign Subsidiary if the repatriation of such Excess Cash Flow from such Foreign Subsidiary at any time during the fiscal year in which such Excess Cash Flow Application Date occurs would cause adverse consequences from fees, taxes or similar impositions of Governmental Authorities to the Borrower or would otherwise be payable as a result of the occurrence of any one-time repatriation holidays; provided that in the event the Borrower is required to make a payment of Excess Cash Flow attributable to a Foreign Subsidiary, such payment shall be made no later than ten (10) days after the Borrower becomes aware that such repatriation would not cause adverse consequences from fees, taxes or similar impositions of Governmental Authorities to the Borrower; provided further that in the event that the Borrower is not required to make a payment of Excess Cash Flow attributable to a Foreign Subsidiary during the fiscal year in which such Excess Cash Flow Application Date occurs, no payment shall be due in any succeeding fiscal year.
(d) Amounts In the event the Borrower fails to consummate the Merger on or prior to the Term Commitment Termination Date, within one (1) Business Day of such date the Borrower shall prepay the outstanding Term Loans in an amount equal to $150,000,000.
(e) Within fifteen (15) days following the Merger Closing Date, the Borrower shall repay any Revolving Loans borrowed on the Closing Date for the purpose of financing the Acquisition.
(f) Except for prepayments required pursuant to Section 4.2(d) (such prepayment solely to be applied to repay the Term Loans) and Section 4.2(e) (such prepayment solely to be applied to repay the Revolving Loans without any permanent reduction of the Revolving Commitments), amounts to be applied in connection with prepayments made pursuant to this Section 4.2 shall be applied applied, first, to the prepayment of the Term Loans in accordance with Section 4.8 and, second, to prepay the Revolving Loans without any permanent reduction of the Revolving Commitments, in each case on a pro rata basis; provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 4.2 shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Term Loans under this Section 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(eg) The TotalAdditional Total Term B Commitment (and the Term Commitments of each Lender) shall terminate in its entirety at 5:00 p.m., New York City time, on the Closingupon funding on the Amendment No.1Closing Date.
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Sources: Credit Agreement (Microsemi Corp)