Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect. (ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii). (iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii). (iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii). (v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year. (vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty. (vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement. (viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (MacDermid Group Inc.), Credit Agreement (MacDermid Group Inc.)
Mandatory. (i) In the event of any termination of all of the Revolving Credit CommitmentsImmediately upon receipt thereof, the Borrower shallshall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received by the Borrower or any of its Subsidiaries from the Disposition of any property other than (A) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business; (B) Dispositions of inventory in the ordinary course of business; (C) Dispositions of equipment or real property to the extent that such property is exchanged for credit against the purchase price of similar replacement property or the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property; (D) Dispositions of property to the Borrower or to a wholly-owned Subsidiary; and (E) Dispositions that do not exceed $25,000,000 of Net Cash Proceeds in the aggregate prior to the Maturity Date.
(ii) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than to the Borrower or to a wholly-owned Subsidiary), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary.
(iii) Immediately upon receipt thereof, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of (A) the amount of increases in the aggregate commitments for revolving credit loans to the Borrower or its Subsidiaries (whether as an increase in the aggregate commitments under its existing Amended and Restated Credit Agreement dated July 20, 2007, under any amendment or restatement thereof or under any new revolving credit agreements or a combination thereof) above the amount of such commitments on the Closing Date and (B) all Net Cash Proceeds received by the Borrower or its Subsidiaries from the incurrence or issuance by the Borrower or any of its Subsidiaries of Indebtedness for borrowed money, other than (I) borrowings of revolving credit loans and (II) Indebtedness in respect of Capitalized Leases or purchase money obligations for fixed or capital assets.
(iv) Notwithstanding the provisions of clause (i) of this Section 2.06(b), so long as no Default under Section 8.01(j), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i) of this Section 2.06(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $5,000,000, the Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i) of this Section 2.06(b) to be applied to prepay Loans exceeds $5,000,000. Upon the occurrence of a Default under Section 8.01(j), or an Event of Default during any such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectdeferral period, the Borrower shall immediately prepay the Loans in the amount of all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto by the Borrower and other amounts, as applicable, that are required to be applied to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of under clause (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis 2.06(b) (in accordance with the respective outstanding principal amounts thereof) without giving effect to the full extent thereof (first and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions second sentences of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), clause (iv)) or (v) of this Section, in but which case the aggregate amount of the prepayment that would have not previously been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementapplied.
Appears in 2 contracts
Sources: 364 Day Term Loan Agreement (Energy Transfer Partners, L.P.), 364 Day Term Loan Agreement (Energy Transfer Equity, L.P.)
Mandatory. (i) In If the event of Aggregate Revolving Exposure outstanding exceeds the Revolving Commitment, the Borrowers will immediately prepay the Revolving Loans hereunder without any termination prepayment premium or penalty (but subject to the payment of all amounts for which the Borrowers are liable under Section 3.05 or similar costs) and Cash Collateralize the Letter of Credit Exposure, in each case to the Revolving Credit Commitmentsextent necessary to eliminate such excess.
(ii) If the aggregate principal amount of outstanding Delayed Draw Term Loans exceed the aggregate Delayed Draw Term Loan Commitment, the Borrower shall, on Borrowers will immediately prepay the Delayed Draw Term Loans hereunder without any prepayment premium or penalty (but subject to the payment of all amounts for which the Borrowers are liable under Section 3.05 or similar costs) to the extent necessary to eliminate such excess.
(iii) On the fifth Business Day after the date of such termination, repay any Asset Sale by the Parent or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters any of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectits Subsidiaries, the Borrower shall immediately Borrowers will prepay all outstanding Revolving Credit the Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations hereunder in an aggregate amount equal to 100% of the amount of Net Cash Proceeds from such excess; providedAsset Sale received by the Parent or any of its Subsidiaries on the date of such Asset Sale. Notwithstanding the foregoing, howeverso long as no Event of Default has occurred and is continuing, that the Borrower Borrowers shall not be required to Cash Collateralize make any prepayment of the L/C Obligations pursuant to Loans under this Section 2.05(b)(i2.03(b)(iii) unless with respect to Net Cash Proceeds received by the Parent or any of its Subsidiaries from Asset Sales to the extent that, on or prior to the date such Net Cash Proceeds would otherwise be required to be so applied the Parent notifies the Administrative Agent that such Net Cash Proceeds are to be reinvested in assets used or usable in the business of the Parent or any of its Subsidiaries within 180 days of each such Asset Sale, and if such Net Cash Proceeds to be reinvested are not in fact reinvested within 180 days after receipt thereof, then such proceeds shall be due and payable, and, in each case, applied to the prepayment of Loans as provided in full this clause (iii) at the expiration of such 180-day period); provided that the amount of such Net Cash Proceeds not applied to prepayment of the Revolving Loans and Swing Line Loans because of this sentence shall not exceed $1,000,000 over the Total Outstandings exceed the Total Revolving Credit Commitments then in effectterm of this Agreement.
(iiiv) On the fifth Business Day after any incurrence of Indebtedness by the Parent or any of its Subsidiaries (other than Indebtedness expressly permitted pursuant to Section 7.03), the Borrowers will prepay the Loans hereunder in an aggregate amount equal to 100% of the amount of the Net Cash Proceeds from such incurrence of Indebtedness received by the Parent or any of its Subsidiaries.
(v) On the fifth Business Day after the closing of any offering or sale of Equity Interests by or any capital contribution to the Parent (other than any Excluded Contribution), the Borrowers will prepay the Loans hereunder in an aggregate amount equal to 50% (or, in the case of Net Cash Proceeds constituting a Cure Amount, 100%) of the Net Cash Proceeds from such offering or sale of Equity Interests.
(vi) On the tenth Business Day after the receipt by the Administrative Agent or the Parent or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation (other than business interruption insurance proceeds) in respect of any Casualty Event affecting any property or assets of the Parent or any of its Subsidiaries, the Borrowers shall prepay the Loans in an aggregate amount equal to 100% of the Net Cash Proceeds from such Casualty Event, provided that the Borrowers shall not be required to make any prepayment of the Loans under this Section 2.03(b)(vi) with respect to Net Cash Proceeds received by any Borrower or any of its Subsidiaries from Casualty Events to the extent if, at the time proceeds of insurance, condemnation award or other compensation (other than business interruption insurance proceeds) in respect of such Casualty Event are received, no Event of Default shall have occurred and be continuing, to the extent that, on or prior to the date such Net Cash Proceeds would otherwise be required to be so applied the Parent notifies the Administrative Agent that such Net Cash Proceeds from such Casualty Event are to be reinvested in the repair, restoration or replacement of the property affected by such Casualty Event or in other assets used or usable in the business of the Borrowers and their Subsidiaries within 180 days of the receipt of such proceeds, and if such Net Cash Proceeds intended to be reinvested are not in fact reinvested then such proceeds shall be due and payable and applied to the prepayment of Loans as provided in this clause (v) at the expiration of such 180-day period).
(vii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each date on which the annual financial statements are required to be delivered for any fiscal year of the Borrower, commencing (beginning with the fiscal year ending on December 31June 30, 2007, and (ii2015) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a6.01(a), if the Borrower shall Total Leverage Ratio is greater than or equal to 2.50:1.00 for the Test Period ending on the last day of such fiscal year, the Borrowers will prepay outstanding the Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), hereunder in an aggregate principal amount equal to 75% (or (A) if the Required Prepayment Percentage Total Leverage Ratio is less than 2.50:1.00 but greater than or equal to 2.00:1.00 for the Test Period ending on the last day of such fiscal year, 50%, or (B) if the Total Leverage Ratio is less than 2.00:1.00 for such Test Period, 0%) of the Excess Cash Flow for the such fiscal year then ended less minus the aggregate amount of all Voluntary Prepayments voluntary prepayments of the Term Loans, and Delayed Draw Term Loans and, to the extent accompanied by a permanent reduction of the Revolving Commitments, Revolving Loans, during such fiscal year.year (but, in the case of Term Loans and, only to the extent that such voluntary prepayments were applied pro rata to remaining installments of the Term Loans or Delayed Draw Term Loans, as applicable);
(viviii) The Borrower (A) Each prepayment of Loans pursuant to this Section 2.03(b) shall deliver be applied first to the Administrative Agent, at Term Loans and any Delayed Draw Term Loans then outstanding (and applied pro rata to the time remaining installments thereof in inverse order of each prepayment required under this Section 2.05(bmaturity), then to the outstanding Revolving Loans and lastly, to the Cash Collateralization of Letters of Credit, (iB) a certificate signed by a Responsible Officer of each such prepayment shall be paid to the Borrower setting forth Lenders in reasonable detail the calculation of the amount accordance with their respective Pro Rata Shares of such prepayment and (iiC) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding shall not result in a permanent reduction of in the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (ARC Group Worldwide, Inc.), Credit Agreement
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time the aggregate outstanding Loans exceed the Total Revolving Credit Commitments then Borrowing Base as reflected in effectthe Borrowing Base Certificate most recently delivered pursuant to Section 6.02(e), within 10 Business Days after delivery of such Borrowing Base Certificate, the Borrower shall immediately prepay all either (x) make additional Intercompany Secured Loans to Subsidiary Guarantors, and the Subsidiary Guarantors shall pledge additional Loan Receivables to the Borrower as collateral, in an amount sufficient to increase the Borrowing Base to an amount not less than the amount of then outstanding Revolving Credit Loans and all or (y) permanently repay outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that . Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued and unpaid interest on the Borrower shall not be principal repaid together with any additional amounts 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect3.05.
(ii) Not later than Promptly following (A) the fifth Business Day following the completion repayment of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andIntercompany Secured Loan, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage if as a result of such Net Cash Proceeds received with respect thereto to prepay repayment the aggregate outstanding Loans and/or Cash Collateralize Letters of Credit exceed the Borrowing Base as reflected in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are Borrowing Base Certificate most recently delivered pursuant to Section 7.01(a)6.02(e) or (B) any time at which the aggregate outstanding Loans exceed the then outstanding aggregate amount of Intercompany Secured Loans plus Unrestricted Cash held by the Borrower (in an amount not to exceed $250.0 million) then, within 10 Business Days after such repayment the Borrower shall prepay outstanding either (x) make additional Intercompany Secured Loans and/or Cash Collateralize Letters to Subsidiary Guarantors with the proceeds of Credit in accordance with Section 2.05(b)(vii)such repayment, and the Subsidiary Guarantors shall pledge additional Loan Receivables to the Borrower as collateral, in an aggregate principal amount equal sufficient to increase the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended Borrowing Base to an amount not less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of than the amount of such prepayment and then outstanding Loans; or (iiy) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (proceeds are not utilized in accordance with the respective outstanding principal amounts thereof) to the full extent thereof foregoing clause (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaidx), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term permanently repay outstanding Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to in an aggregate amount equal to 105% such excess. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued and unpaid interest on the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; principal repaid together with any remaining additional amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein the foregoing, each prepayment of Loans pursuant to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days this Section 2.03(b)(ii) that is made on or prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount first anniversary of the prepayment that would have been applied to prepay such Term Loans but was so declined Closing Date shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In the event of such accompanied by a re-offer, the relevant Lenders may elect, by notice to the Administrative Agent by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained premium payable by the Borrower to be used in accordance with the provisions ratable account of this Agreementthe Lenders equal to 1.00% of the principal amount of the Loans so prepaid.
Appears in 2 contracts
Sources: Credit Agreement (American General Finance Corp), Credit Agreement (American General Finance Inc)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Aggregate Commitments then in effect, the Borrower shall immediately (x) prepay all outstanding Revolving Credit Committed Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage such excess and (y) if any excess remains after prepaying all Committed Loans as a result of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver outstanding L/C Obligations, pay to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer on behalf of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (L/C Issuers and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment dateLenders, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described excess in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower order to be used in accordance with the provisions of this AgreementCash Collateralize such outstanding L/C Obligations.
(viiiii) Mandatory prepayments Upon any determination of outstanding Term Loans under this Agreement shall be applied pro rata against or adjustment to the remaining scheduled installments of principal due in respect amount of the Tranche B Term Loans and Tranche C Term Loans Borrowing Base pursuant to Section 2.07. Such mandatory prepayments 2.05 (other than pursuant to Section 2.05(c), 2.05(d) or 2.05(e)), if a Borrowing Base Deficiency exists, the Borrower shall, within ten days after being notified of such Borrowing Base Deficiency, provide an irrevocable written notice (the “Election Notice”) to Lender stating the action which Borrower proposes to take to remedy such Borrowing Base Deficiency, and the Borrower shall be applied on thereafter do one or a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment combination of the Term Loans following (as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made elected by the Borrower pursuant to Section 3.05 the Election Notice) in an aggregate amount sufficient to eliminate such Borrowing Base Deficiency:
(A) within ten days following the delivery (or required delivery) of such Election Notice, make a prepayment of the Committed Loans (and, if a Borrowing Base Deficiency remains after prepaying all of the Committed Loans as a result of outstanding L/C Obligations, pay to the Administrative Agent, on behalf of the L/C Issuers and the Lenders, an aggregate amount equal to such remaining deficiency in order to Cash Collateralize such outstanding L/C Obligations);
(B) pay in six equal monthly installments of the Outstanding Amount of the Committed Loans (and, if a Borrowing Base Deficiency remains after prepaying all of the Committed Loans as a result of outstanding L/C Obligations, pay to the Administrative Agent, on behalf of the L/C Issuers and the Lenders, an aggregate amount equal to such remaining deficiency in order to Cash Collateralize such outstanding L/C Obligations) over a term and in an amount satisfactory to the Administrative Agent (but in any event, with the first such monthly installment to be due on the thirtieth day following delivery of the Election Notice and each subsequent installment being equal to 1/6 of the aggregate amount of such Borrowing Base Deficiency due and payable on the dame date in each applicable subsequent calendar month), by immediately dedicating a sufficient amount of monthly cash flow from the Oil and Gas Properties of the Borrower and the other Loan Parties; and/or
(C) within thirty days following the delivery of the Election Notice, grant the Administrative Agent, on behalf of the Secured Parties, a first-priority Lien, pursuant to Collateral in form and substance satisfactory to the Administrative Agent, on additional Oil and Gas Properties not evaluated in the case of most recently delivered Engineering Report to the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans Administrative Agent and with an Interest Period of one month aggregate PV9 Pricing attributable thereto sufficient to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period eliminate such deficiency; provided that, in a manner that minimizes the amount of any payments required to be made by no event may the Borrower pursuant to Section 3.05elect the option specified in this clause (ii)(C) (in whole or in part) if fewer than ninety-one days remain until the Maturity Date. Notwithstanding anything herein to the contrary, all payments required to be made pursuant to this Section 2.06(b)(ii) must, in any Term Loan Lender may electevent, by notice be made on or prior to the Maturity Date. In the event the Borrower fails to provide an Election Notice to the Administrative Agent by facsimile at least eight Business Days prior within the ten day period referred to above, the Borrower shall be deemed to have irrevocably elected the option set forth in clause (ii)(B). The failure of the Borrower to comply with any of the options elected (including any deemed election) pursuant to the applicable prepayment date, provisions of this Section 2.06(b)(ii) and specified in such Election Notice (or relating to decline all such deemed election) shall constitute an immediate Event of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), Default.
(iii), (iv) or (v) of this Section, in which case Upon any adjustment to the aggregate amount of the prepayment that would have been applied Borrowing Base pursuant to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to Section 2.05(c), 2.05(d) or 2.05(e), if a Borrowing Base Deficiency exists, then the Borrower shall, in each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In the event of such a re-offercase, the relevant Lenders may elect, by notice to the Administrative Agent by facsimile within two Business Days of receiving notification of such re-offer, to decline all after the consummation or occurrence of the event or events giving rise to such Borrowing Base adjustment, prepay Committed Loans in an aggregate principal amount equal to such deficiency and (y) if any deficiency remains after prepaying all Committed Loans as a result of outstanding L/C Obligations, pay to the Administrative Agent, on behalf of the L/C Issuers and the Lenders, an aggregate amount equal to such prepayment that is re-offered excess in order to themCash Collateralize such outstanding L/C Obligations; provided that, notwithstanding anything herein to the contrary, all payments required to be made pursuant to this Section 2.06(b)(iii) must, in which case any event, be made on or prior to the aggregate amount of the prepayment that would have been applied to prepay such Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementMaturity Date.
Appears in 2 contracts
Sources: Refinancing Amendment (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Mandatory. (i) In the event of any termination of all any Tranche of the Revolving Credit Commitments, the Borrower Borrowers shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans of such Tranche and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Outstanding Amount of Revolving Credit Loans of any Tranche of Revolving Credit Commitments at any time exceed exceeds the Total amount of Revolving Credit Commitments of such Tranche then in effect, the Borrower Borrowers shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans of such Tranche and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless unless, after the prepayment in full of the Revolving Credit Loans and Swing Line Loans of the applicable Tranche, the Total Outstandings exceed exceeds the Total Revolving Credit Commitments then in effect. Mandatory prepayments of any Tranche of Revolving Credit Loans shall be made on a pro rata basis among the outstanding Revolving Credit Loans of such Tranche.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale or Permitted Sale Leaseback Transaction and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefromtherefrom by any Loan Party or any Restricted Subsidiary, the Borrower ESI shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)2.05(b)(vi) provided that such prepayment shall only be required under this clause (ii) if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000. For the avoidance of doubt, no prepayments shall be required in connection with the Arysta Sale at any time before or after the Closing Date.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party Borrower or any Restricted Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of any Indebtedness of any Loan Party Borrower or any Subsidiary of a Loan Party (other than Indebtedness Restricted Subsidiary, in each case, that is not permitted pursuant to Section 8.02), the Borrower Borrowers shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party Borrower or such Restricted Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(vi).
(viv) No Commencing with the fiscal year ending on December 31, 2019, no later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)ESI, the Borrower Borrowers shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(vi), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year; provided that such prepayment shall only be required under this clause (iv) if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000.
(viv) The Borrower ESI shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 three Business Days prior written notice of such any prepayment pursuant to Section 2.05(b)(i) and at least ten Business Days prior written notice of any prepayment pursuant to Section 2.05(b)(ii), (and iii) or (iv) (and, in each case, the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall be substantially in the form of Exhibit I and shall specify the prepayment date, the Class Class, Tranche and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(viivi) Mandatory prepayments under sub-paragraphs (iiSections 2.05(b)(ii), (iii), ) and (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Credit Loans on a pro rata basis among the relevant Tranches of Revolving Credit Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Credit Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105103% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower Borrowers to be used in accordance with the provisions of this Agreement.
(viiivii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans, RFR Loans, EURIBO Rate Loans or Eurocurrency Rate Term SOFR Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of such Tranche of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency EURIBO Rate Loans, Term SOFR Loans or RFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower Borrowers pursuant to Section 3.05. For the avoidance of doubt, the 2023 Incremental Tranche A Term Loans shall participate in such mandatory prepayments on a pro rata basis with the Tranche B-1 Term Loans (based on the principal amount of 2023 Incremental Tranche A Term Loans and the Tranche B-1 Term Loans outstanding on such date of prepayment). Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (iiSection 2.05(b)(ii), (iii), (iv) or (v) of this Sectioniv), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower Borrowers (such retained amounts, the “Retained Declined Proceeds”) to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Mandatory. (i) In [Reserved.]
(ii) Other than in connection with a Cost-Cutting Transaction (solely to the event extent the proceeds thereof are incorporated into the Approved Budget effective as of the date of the applicable Cost-Cutting Transaction and solely to the extent such proceeds are used as and when contemplated thereby), if any Loan Party or any of its Subsidiaries (x) Disposes of any termination property in a Disposition constituting an Asset Sale which results in the realization by such Person of all Net Cash Proceeds, (y) receives Net Cash Proceeds of casualty insurance or condemnation awards (or from payments in lieu thereof) (excluding for purposes of this clause (y) any Net Cash Proceeds from “Recoveries” (as defined in the AWA Environmental Indemnity Agreement and the PDC Environmental Indemnity Agreement), which must be paid to AWA under the terms of the Revolving Credit Commitmentsapplicable Fox River Indemnity Arrangements) or (z) incurs or issues any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall, on the date shall prepay an aggregate principal amount of Term Loans equal to 100% of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Net Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit Proceeds within five (5) Business Days of the Secured Parties receipt thereof by such Person (such prepayments to be applied as set forth in clause (iii) below); provided, however, that, (A) so long as no Event of Default shall have occurred and be continuing, with respect to any prepayment of Term Loans required to be made pursuant to the preceding clause (x) above in this Section 2.05(b)(ii), subject to the consent of the Required Lenders (in their sole discretion), if such prepayment would result in the manner described prepayment of one or more Eurodollar Rate Loans on a day other than the last day of the then current Interest Period for each such Eurodollar Rate Loan, the Borrower may defer the relevant portion of such required payment until the last day of the relevant then current Interest Period of each such applicable Eurodollar Rate Loan (provided that such deferral period shall in Section 2.03(g). If for no case exceed sixty (60) days, provided further that, upon the occurrence of an Event of Default or the Termination Date during any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectsuch deferral period, the Borrower shall immediately prepay Term Loans in the amount of all outstanding Revolving Credit Loans Net Cash Proceeds received by the Borrower and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; providedother amounts, howeveras applicable, that the Borrower shall not be are required to Cash Collateralize the L/C Obligations pursuant be applied to prepay Loans under this Section 2.05(b)(ii) (without giving effect to this Section 2.05(b)(iclause (A)) unless after the prepayment in full but which have not previously been so applied) and (B) with respect to any Net Cash Proceeds of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii1) Not later than the fifth Business Day following the completion of any property constituting an Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andotherwise required to be applied under preceding clause (x) above in this Section 2.05(b)(ii), or (2) casualty insurance or condemnation awards (or from payment in lieu thereof) otherwise required to be applied under preceding clause (y) above in this Section 2.05(b)(ii), then in each case, subject to the receipt prior written consent of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage Lenders (in their sole discretion), such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds received with respect thereto in operating assets on terms and conditions reasonably agreed to prepay outstanding by the Required Lenders; and provided further, however, that any Net Cash Proceeds of, as applicable, Asset Sales or casualty insurance or condemnation awards (or from payment in lieu thereof) not so reinvested shall be promptly applied if an Event of Default has occurred and is continuing to the prepayment of the Term Loans and/or Cash Collateralize Letters of Credit as set forth in accordance with this Section 2.05(b)(vii2.05(b)(ii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant Subject to Section 8.022.05(c), the Borrower shallif applicable, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to the foregoing provisions of this Section 2.07. Such mandatory prepayments 2.05(b) shall be applied on a pro rata basis first, to the then outstanding NM Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described belowand second, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to suboutstanding Roll-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementup Loans.
Appears in 2 contracts
Sources: Credit Agreement (Paperweight Development Corp), Dip Facility Agreement
Mandatory. (i) In The Company shall prepay the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Committed Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations as hereinafter provided in an aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party from all Involuntary Dispositions with respect to Collateral within five (5) days of the date of receipt of such excessNet Cash Proceeds with respect to such Involuntary Disposition; provided, however, that that, with respect to an Involuntary Disposition of the Borrower type described in clause (a) of such definition, so long as no Default shall have occurred and be continuing and such casualty occurs prior to November 22, 2023, all or any portion of such Net Cash Proceeds shall not be required to Cash Collateralize be so applied at the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full election of the Revolving Loans and Swing Line Loans Company (as notified by the Total Outstandings exceed Company to the Total Revolving Credit Commitments then in effect.
(iiAdministrative Agent) Not later than to the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of extent such Loan Party reinvests such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters in restoration or repair of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occursapplicable loss, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence destruction or damage of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) Collateral within 180 days after the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of Proceeds; provided that if such Net Cash Proceeds shall have not been so reinvested shall be immediately applied to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)the Committed Loans.
(vii) No later than The Company shall prepay the earlier Committed Loans in connection with a Property Substitution or Prepayment Release in the amounts, and to the extent required, pursuant to Section 2.19.
(iii) Each prepayment of Loans pursuant to clause (i) 90 days after of this Section 2.05(b) shall be applied, to the end of each fiscal year remaining principal repayment installments of the Borrower, commencing with Loans (including any payment due on the fiscal year ending on December 31, 2007, and Maturity Date) in inverse order of maturity. Each prepayment of Loans pursuant to clause (ii) the date on which the financial statements with respect to such period are delivered pursuant to of this Section 7.01(a)2.05(b) shall be applied, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage remaining principal repayment installments of Excess Cash Flow for the fiscal year then ended less Loans (including any payment due on the aggregate amount of all Voluntary Prepayments during such fiscal year.
(viMaturity Date) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required on a pro rata basis. All prepayments under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.053.06, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid accompanied by interest and fees on the principal amount prepaid through the date of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreementprepayment.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectFacility at such time, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings), as applicable, in an aggregate amount equal to such excess; provided.
(ii) Amounts to be applied as provided in this clause (b) to the prepayment of the Revolving Credit Loans shall be applied first to reduce outstanding Base Rate Loans. Any amounts remaining after each such application shall be applied to prepay Eurodollar Rate Loans, howeverin accordance with Sections 8.02 and 8.03.
(iii) Notwithstanding anything to the contrary set forth herein, that if a Public Equity Offering Transaction has not occurred prior to the Borrower last Business Day of a calendar quarter in any Fiscal Year, beginning with the last Business Day of the second calendar quarter of Fiscal Year 2018 and on the last Business Day of each calendar quarter thereafter until the occurrence of a Public Equity Offering Transaction, (x) the Borrowers shall not be required repay the Revolving Credit Loans in an amount equal to $2,500,000 per quarter (the “Required Quarterly RL Payment”) (and if no Revolving Credit Loans are outstanding at the time of such Required Quarterly RL Payment, the Borrowers shall: first, repay the Swing Line Loans, second, repay the L/C Borrowings, and third, Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later other than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andL/C Borrowings), if any, in each case, in an amount not to exceed the receipt lesser of Net Cash Proceeds resulting therefrom(xA) the aggregate amount of such Swing Line Loans, L/C Borrowings or L/C Obligations outstanding at the Borrower shall apply time of such Required Quarterly RL Payment and (B) the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
Quarterly RL Payment) and, (iiiy) In the event and Required Quarterly RL Payment on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth last Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefromeach calendar quarter commencing on September 30, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted 2017, and, pursuant to Section 8.022.06(b)(i), the Borrower shall, substantially simultaneously with (and in any event not later than Revolving Credit Commitment shall be concurrently reduced on the fifth last Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply each calendar quarter in an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Quarterly RL Payment.
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (NOODLES & Co), Securities Purchase Agreement (NOODLES & Co)
Mandatory. (i) In Subject in all respects to the event of any termination of all of prepayment and cash collateralization requirements under the Revolving Credit CommitmentsAgreement, and to the extent actually applied thereunder, to the extent not applied pursuant to the Revolving Credit Agreement with respect to Revolving Credit Facility Collateral, within three (3) Business Days of the receipt by the Company or any of its Subsidiaries of Net Cash Proceeds from Asset Sales or Casualty Events (other than the Specified Sale) when aggregated with all such Net Cash Proceeds received prior to that time and not otherwise applied is equal to or greater than Proceeds Amount, the Borrower shall, on Company shall apply all such Net Cash Proceeds to prepay the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described set forth in Section 2.03(g2.08(b)(iv). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectAfter such application, the Borrower Net Cash Proceeds shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize reset to zero upon the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations making of a mandatory prepayment pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect2.08(b)(i).
(ii) Not later than Subject to Section 2.08(b)(vi), within three (3) Business Days after day of receipt by the fifth Business Day following Company or any of its Subsidiaries of the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefromfrom the Specified Sale, the Borrower Company shall apply an amount equal to the Required Applicable Prepayment Percentage of such Net Cash Proceeds received with respect thereto (if any) to prepay outstanding the Loans and/or in the manner set forth in Section 2.08(b)(iv). If the winning bid for any portion of assets or businesses that are part of a Specified Sale include a credit bid of New Money Loans (as defined in the Existing DIP Term Loan Agreement), the amount of such credit bid shall be deemed to be Net Cash Collateralize Letters Proceeds for purposes of Credit in accordance with this Section 2.05(b)(vii2.08(b)(ii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing Beginning with the fiscal year Excess Cash Flow Period ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)2014, the Borrower Company shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of calculate Excess Cash Flow for such Excess Cash Flow Period no later than six months after the fiscal year then ended less end of such Excess Cash Flow Period (such date, the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi“Excess Cash Flow Calculation Date”) The Borrower shall and deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer setting forth the amount, if any, of Excess Cash Flow for such Excess Cash Flow Period and the calculation thereof in reasonable detail. If the Worldwide Cash as of the Borrower setting last day of the applicable Excess Cash Flow Period exceeds $800,000,000 (the “Excess Cash Trigger Amount”), the Company shall apply an amount equal to 50% of Excess Cash Flow above the Excess Cash Trigger Amount to prepay the Loans no later than 45 days following the Excess Cash Flow Calculation Date in the manner set forth in reasonable detail the calculation of the amount of such Section 2.08(b)(iv); provided that no prepayment and (iishall be required pursuant to this Section 2.08(iii) to the extent practicable, at least 10 Business Days prior written notice of that such prepayment would cause (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereofa) Worldwide Cash to be prepaid. All prepayments less than the Excess Cash Trigger Amount or (b) U.S. Minimum Liquidity to be less than $100,000,000.
(iv) Each prepayment of Borrowings principal pursuant to this Section 2.05 2.08(b) shall be subject applied in the following order: (x) first, to the ratable prepayment of the First Lien Loans until all such Loans have been prepaid in full, and second to the ratable prepayment of the Junior Loans until all such Loans have been prepaid in full and (y) first to outstanding Base Rate Loans of each applicable Class up to the full amount thereof, and second to outstanding Eurodollar Rate Loans of each applicable Class up to the full amount thereof. Each prepayment made pursuant to this Section 2.08(b) shall be made together with any interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case of any prepayment of a Eurodollar Rate Loan on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the Company shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 3.059.04(c).
(v) The Agent shall give prompt notice of any prepayment required under this Section 2.08(b) to Lenders.
(vi) Notwithstanding any other provisions of this Section 2.08(b), (A) with respect only to any Asset Sale, IP License or Casualty Event described in Section 2.08(b)(i), to the extent that applicable law would effectively (1) prohibit or delay the repatriation to the United States of America of any Net Cash Proceeds received by any Subsidiary that is not a U.S. Subsidiary or (2) impose material adverse tax or legal consequences on the Company and its Subsidiaries if such Net Cash Proceeds were so repatriated, in each case as determined by the Company in good faith, the portion of such Net Cash Proceeds so affected shall be disregarded for purposes of determining the amount of any mandatory prepayment required to be made under this Section 2.08(b) so long, but only for so long, as applicable local law would prohibit such repatriation (the Company hereby agreeing to promptly take or to cause the applicable Subsidiary to promptly take (as the case may be) all actions required by the applicable local law to permit such repatriation) or impose such material adverse tax consequences, and at such time as such repatriation of any such Net Cash Proceeds becomes permitted under the applicable local law and/or such material adverse tax consequences would no longer exist (and in any event within three Business Days thereafter) (and whether or not any of such Net Cash Proceeds are actually repatriated), the Company shall otherwise prepay the Loans in accordance with Section 2.08(b)(iii), and (B) with respect only to any Excess Cash Flow prepayment described in Section 2.08(b)(iii), to the extent that applicable law would effectively prohibit or delay the repatriation to the United States of America of any proceeds received by any Subsidiary that is not a U.S. Subsidiary or result in material adverse tax consequences, as determined by the Company in good faith, the proceeds so affected shall be without premium disregarded for purposes of determining the amount of any mandatory prepayment required to be made under Section 2.08(b) so long, but only for so long, as applicable local law would prohibit such repatriation (the Company hereby agreeing to promptly take or penaltyto cause the applicable Subsidiary to promptly take (as the case may be) all actions required by the applicable local law to permit such repatriation), and at such time as such repatriation of any such proceeds becomes permitted under the applicable local law (and in any event within three Business Days thereafter) (and whether or not any of such proceeds are actually repatriated), the Company shall prepay the Loans in accordance with Section 2.08(b)(iv).
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) Any Net Cash Proceeds not required to be applied to the prepayment of Loans pursuant to this Section 2.08 shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) available to the full extent thereof (Company and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject its Subsidiaries to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreementuse for their general corporate purposes.
(viii) If any of the Loans would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, at the end of any “accrual period” (as defined in Section 1272(a)(5) of the Code) ending after the fifth anniversary of the date of the Existing DIP Term Loan Agreement (each, an “AHYDO Redemption Date”), the Company shall be required to redeem for cash a portion of each such Loan then outstanding equal to the Mandatory prepayments Principal Redemption Amount (each such redemption, a “Mandatory Principal Redemption”). The redemption price for the portion of outstanding Term each Loan thus redeemed shall be 100% of the principal amount of such portion plus any accrued interest thereon on the date of redemption. No partial redemption or repurchase of the Loans under prior to any AHYDO Redemption Date pursuant to any other provision of this Agreement shall be applied pro rata against will alter the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant Company’s obligation to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, make any Mandatory Principal Redemption with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term any Loans that are Base Rate Loans remain outstanding on such AHYDO Redemption Date. The ordering rule in Section 2.08(b)(iv) shall not apply to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments redemptions required to be made by the Borrower pursuant to this Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii2.08(b)(viii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement
Mandatory. REGISTRATION
(a) The Company will use its best efforts to file with the Securities and Exchange Commission (the "COMMISSION") and to cause to become effective no later than that date which is 270 days from the Final Closing(such day is referred to herein as the "EFFECTIVE DATE"), a registration statement (the "INITIAL REGISTRATION STATEMENT") under the Act for the offering and sale of the Restricted Registrable Securities, and, further, the Company shall use its best efforts to keep such Initial Registration Statement effective through the earliest of: (i) In the event of any termination expiration date of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal Warrants issued to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007Holders, and (ii) the date on which exercise in full of all Warrants by the financial statements Holders, and (iii) the redemption of all Warrants issued to the Holders by the Company, but in any event, with respect to the Shares, until such time as the Shares are no longer deemed Restricted Registrable Securities hereunder (the period are delivered pursuant during which the Initial Registration Statement remains effective is hereinafter referred to Section 7.01(aas the "Initial Registration Period.")
(b) The Company further agrees, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)if necessary, in an aggregate principal amount equal to supplement or make amendments to the Required Prepayment Percentage Initial Registration Statement and any prospectus contained therein, if required by the Initial Registration Statement form utilized by the Company or by the instructions applicable to such registration form or by the Act or the rules and regulations thereunder, and the Company agrees to furnish copies of Excess Cash Flow for such Initial Registration Statement, prospectus, supplement or amendment as soon as practicable after its being used and/or filed with the fiscal year then ended less Commission to the aggregate amount of all Voluntary Prepayments during such fiscal yearsecurity holders whose Restricted Registrable Securities are included in the Initial Registration Statement.
(vic) The Borrower shall deliver to Company will pay all Registration Expenses (as hereinafter defined) incurred in connection with the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Company's registration obligations pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty2.
(viid) Mandatory prepayments under subThe Company agrees to take whatever actions are reasonably deemed necessary by First Equity Capital Securities, Inc. (the "PLACEMENT AGENT") in order to assist the Investors, First Equity, and their agents when selling securities of the Company in complying with Rule 15c6-paragraphs 1 of the Securities Exchange Act of 1934, as amended.
(iie) The Company will make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of twelve months, commencing on the first day of the fiscal quarter next succeeding the effective date of each sale of any Restricted Registrable Securities pursuant to the Initial Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Act.
(f) The Company and the Purchasers acknowledge and agree that the rights of First Equity Capital Securities, Inc. (the "PLACEMENT AGENT") and any other dealers or registered representatives thereof chosen by the Placement Agent with the approval of the Company that are members of the National Association of Securities Dealers, Inc. (each, a "SELECTED DEALER" and collectively, the "SELECTED DEALERS"), under Section 3 of that certain Dealer Registration Rights Agreement dated the date hereof by and between the Company and the Placement Agent (iiithe "DEALER REGISTRATION RIGHTS AGREEMENT"), include the right of the Placement Agent and/or any Selected Dealer to have added to and made a part of the Initial Registration Statement the number of shares of Common Stock of the Company (ivincluding those shares included in the Dealer Warrants and underlying the "Series B Warrants" as such term is defined in the Dealer Registration Rights Agreement) requested in writing by the Placement Agent and/or the Selected Dealers. The Placement Agent and (v) each Selected Dealer shall each be direct third party beneficiaries of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (2 and the corresponding accrued rights arising therefrom, and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with may enforce the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepaymentthis Section 2 directly against the Company in any manner permitted by applicable law, as if the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 Placement Agent and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSelected Dealer were signatories hereto.
Appears in 2 contracts
Sources: Registration Rights Agreement (Seracare Inc), Registration Rights Agreement (Seracare Inc)
Mandatory. (i) In If any Dispositions or Events of Loss with respect to any Property that includes any Pre-Petition BMO Primary Collateral, Pre-Petition CoBank Primary Collateral or Collateral (in an amount in excess of $1,000,000 in the event aggregate) occur prior to the Termination Date and outside the ordinary course of business (no such Disposition to occur without Bankruptcy Court approval and with the Lenders reserving all rights, if any, to object to any termination such Disposition), 100% of the Net Proceeds thereof in excess of $1,000,000 (or any greater amount that is a whole multiple of $250,000) in the aggregate (the “Prepayment Amount”) shall be applied as follows:
(A) First, to the costs, fees and expenses of the DIP Agent and the Lenders (including without limitation the reasonable fees and expenses of their counsel and other professionals, including those previously employed or retained by the DIP Agent and the Lenders);
(B) Second, to interest and fees then due and then to the prepayment of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and unreimbursed Reimbursement Obligations hereunder until all outstanding Swing Line such Loans and replace all Reimbursement Obligations shall be fully paid (but without any reduction in the DIP Commitments resulting from such prepayments);
(C) Third, to be held by the DIP Agent in the Cash Collateral Account (including to prefund outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) until released or applied pursuant to Section 4.4 hereof (but without any reduction in the DIP Commitments resulting from such prepayments); and
(D) Fourth, as described the Financing Order shall provide if then in effect and otherwise as shall be determined by the Bankruptcy Court. Any such proceeds of sale designated to pay such taxes and costs of sale which are not required to be disbursed at the closing of such sale shall be held in escrow by the DIP Agent and shall be subject to the Lien of the DIP Agent, the Lenders, the Pre-Petition BMO Agent, the Pre-Petition BMO Lenders, the Pre-Petition CoBank Agent and the Pre-Petition CoBank Lenders until applied to pay such taxes and costs of sale and the amount of all obligations secured by Permitted Liens that are senior to the DIP Agent’s in the Collateral and the Replacement Liens.
(ii) Prior to the Termination Date, all Available Unrestricted Cash (including without limitation all Available Unrestricted Cash consisting of proceeds of the inventory and proceeds of the accounts receivable of the Borrower and the Guarantors and all Cash Collateral generated in the ordinary course of the Borrower’s and the Guarantors’ businesses) determined as of 12:00 noon, Chicago time, on any Business Day (other than amounts subject to Section 1.8(b)(i) hereof) in excess of $15,000,000 shall be deposited in the Collection Accounts referred to in Section 2.03(g4.3 hereof and applied daily as follows:
(A) First, to the costs, fees and expenses of the DIP Agent and the Lenders (including without limitation the reasonable fees and expenses of their counsel and other professionals, including those previously employed or retained by the DIP Agent and the Lenders) that are then due and payable;
(B) Second, to interest and fees then due and payable and then to the prepayment of all outstanding Loans and unreimbursed Reimbursement Obligations hereunder until all such Loans and Reimbursement Obligations shall be fully paid (but without any reduction in the DIP Commitments resulting from such prepayments); and
(C) Third, to be held by the DIP Agent in the Cash Collateral Account (including to prefund outstanding Letters of Credit in an amount equal to 105% of the amount of all such Letters of Credit) until released or applied pursuant to Section 4.4 hereof.
(iii) The Borrower shall, on each date the DIP Commitments are reduced pursuant to Section 1.11 hereof, prepay the DIP Loans, Swing Loans, and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of DIP Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the DIP Commitments have been so reduced.
(iv) If at any time the sum of the unpaid principal balance of the DIP Loans, Swing Loans, and the L/C Obligations then outstanding shall be in excess of the lesser of the DIP Commitments then in effect and the Borrowing Base as determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall immediately and without notice or demand pay over the amount of the excess to the DIP Agent for the account of the Lenders as and for a mandatory prepayment on such Post-Petition Obligations, with no corresponding reduction of each such prepayment first to be applied to the Revolving Credit Commitments; DIP Loans and Swing Loans until paid in full with any remaining amounts being retained balance to be held by the Borrower DIP Agent in the Cash Collateral Account as security for the Post-Petition Obligations owing with respect to be used in accordance with the provisions outstanding Letters of this AgreementCredit.
(viiiv) Mandatory prepayments Each prepayment of outstanding Term Loans under this Agreement Section 1.8(b) shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case payment of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05prepaid. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all Each prefunding of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined L/C Obligations shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 4.4 hereof.
Appears in 2 contracts
Sources: Post Petition Credit Agreement (Pilgrims Pride Corp), Post Petition Credit Agreement (Pilgrims Pride Corp)
Mandatory. (i) In If at any time the event of any termination of all sum of the Revolving Credit Commitmentsunpaid principal balance of the Loans and the L/C Obligations then outstanding shall be in excess of the Threshold Available Amount as determined and computed in the most recent Available Amount Certificate delivered in accordance with Section 8.5(d) or Section 8.5(m) hereof, the Borrower shall within five (5) calendar days, and without notice or demand, pay the amount in excess of the Threshold Available Amount to the Administrative Agent for the account of the Lenders as a mandatory prepayment on such Obligations.
(ii) If at any time the sum of the unpaid principal balance of the Loans and the L/C Obligations then outstanding shall be in excess of the Available Amount (but not the Threshold Available Amount) as determined and computed in the most recent Available Amount Certificate delivered in accordance with Section 8.5(d) or Section 8.5(m) hereof, the Borrower shall, on within thirty (30) calendar days, and without notice or demand, pay the date amount of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with excess to the Collateral Administrative Agent for the benefit account of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to Lenders as a mandatory prepayment on 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Obligations.
(iii) In All prepayments under this Section 1.8(b) shall first be applied to the event and on each occasion that a Specified Equity Issuance occursLoans until paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit. Unless the Borrower shallotherwise directs, substantially simultaneously prepayments of Loans under this Section 1.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with (and any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any event not later than Eurodollar Loans accrued interest thereon to the fifth Business Day next following) date of prepayment together with any amounts due the occurrence Lenders under Section 1.11 hereof. Each prefunding of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit L/C Obligations shall be made in accordance with Section 2.05(b)(vii)9.4 hereof.
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Monmouth Real Estate Investment Corp), Credit Agreement (Monmouth Real Estate Investment Corp)
Mandatory. (i) In If the event of Aggregate Revolving Exposure outstanding exceeds the Revolving Commitment, the Borrowers will immediately prepay the Revolving Loans hereunder without any termination prepayment premium or penalty (but subject to the payment of all amounts for which the Borrowers are liable under Section 3.05 or similar costs) and Cash Collateralize the Letter of Credit Exposure, in each case to the Revolving Credit Commitmentsextent necessary to eliminate such excess.
(ii) If the aggregate principal amount of outstanding Delayed Draw Term Loans exceed the aggregate Delayed Draw Term Loan Commitment, the Borrower shall, on Borrowers will immediately prepay the Delayed Draw Term Loans hereunder without any prepayment premium or penalty (but subject to the payment of all amounts for which the Borrowers are liable under Section 3.05 or similar costs) to the extent necessary to eliminate such excess.
(iii) On the fifth Business Day after the date of such termination, repay any Asset Sale by the Parent or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters any of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectits Subsidiaries, the Borrower shall immediately Borrowers will prepay all outstanding Revolving Credit the Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations hereunder in an aggregate amount equal to 100% of the amount of Net Cash Proceeds from such excess; providedAsset Sale received by the Parent or any of its Subsidiaries on the date of such Asset Sale. Notwithstanding the foregoing, howeverso long as no Event of Default has occurred and is continuing, that the Borrower Borrowers shall not be required to Cash Collateralize make any prepayment of the L/C Obligations pursuant to Loans under this Section 2.05(b)(i2.03(b)(iii) unless with respect to Net Cash Proceeds received by the Parent or any of its Subsidiaries from Asset Sales to the extent that, on or prior to the date such Net Cash Proceeds would otherwise be required to be so applied the Parent notifies the Administrative Agent that such Net Cash Proceeds are to be reinvested in assets used or usable in the business of the Parent or any of its Subsidiaries within 180 days of each such Asset Sale, and if such Net Cash Proceeds to be reinvested are not in fact reinvested within 180 days after receipt thereof, then such proceeds shall be due and payable, and, in each case, applied to the prepayment of Loans as provided in full this clause (iii) at the expiration of such 180-day period); provided that the amount of such Net Cash Proceeds not applied to prepayment of the Revolving Loans and Swing Line Loans because of this sentence shall not exceed $1,000,000 over the Total Outstandings exceed the Total Revolving Credit Commitments then in effectterm of this Agreement.
(iiiv) On the fifth Business Day after any incurrence of Indebtedness by the Parent or any of its Subsidiaries (including the incurrence of the Indebtedness evidenced by the Subordinated Debt but other than other Indebtedness expressly permitted pursuant to Section 7.03), the Borrowers will prepay the Loans hereunder in an aggregate amount equal to 100% of the amount of the Net Cash Proceeds from such incurrence of Indebtedness received by the Parent or any of its Subsidiaries.
(v) On the fifth Business Day after the closing of any offering or sale of Equity Interests by or any capital contribution to the Parent (other than any Excluded Contribution), the Borrowers will prepay the Loans hereunder in an aggregate amount equal to 100% of the Net Cash Proceeds from such offering or sale of Equity Interests, provided that (x) if the Senior Leverage Ratio is less than 2.75:1.00 but greater than or equal to 2.25:1.00 without giving effect to such issuance and the application of the proceeds thereof for the period of four consecutive fiscal quarters most recently ended and for which financial statements are required to have been delivered pursuant to Section 6.01(a) or (b), the Borrowers will prepay the Loans hereunder in an aggregate amount equal to 75% of the Net Cash Proceeds from such offering or sale of Equity Interests and (y) if the Senior Leverage Ratio is less than 2.25:1.00 without giving effect to such issuance and the application of the proceeds thereof for the period of four consecutive fiscal quarters most recently ended and for which financial statements are required to have been delivered pursuant to Section 6.01(a) or (b), the Borrowers will prepay the Loans hereunder in an aggregate amount equal to 50% of the Net Cash Proceeds from such offering or sale of Equity Interests. Notwithstanding the foregoing, the Borrowers will make such prepayments in respect of any Net Cash Proceeds constituting a Cure Amount in an amount equal to 100% of such Net Cash Proceeds.
(vi) On the tenth Business Day after the receipt by the Administrative Agent or the Parent or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation (other than business interruption insurance proceeds) in respect of any Casualty Event affecting any property or assets of the Parent or any of its Subsidiaries, the Borrowers shall prepay the Loans in an aggregate amount equal to 100% of the Net Cash Proceeds from such Casualty Event, provided that the Borrowers shall not be required to make any prepayment of the Loans under this Section 2.03(b)(vi) with respect to Net Cash Proceeds received by any Borrower or any of its Subsidiaries from Casualty Events to the extent if, at the time proceeds of insurance, condemnation award or other compensation (other than business interruption insurance proceeds) in respect of such Casualty Event are received, no Event of Default shall have occurred and be continuing, to the extent that, on or prior to the date such Net Cash Proceeds would otherwise be required to be so applied the Parent notifies the Administrative Agent that such Net Cash Proceeds from such Casualty Event are to be reinvested in the repair, restoration or replacement of the property affected by such Casualty Event or in other assets used or usable in the business of the Borrowers and their Subsidiaries within 180 days of the receipt of such proceeds, and if such Net Cash Proceeds intended to be reinvested are not in fact reinvested then such proceeds shall be due and payable and applied to the prepayment of Loans as provided in this clause (v) at the expiration of such 180-day period).
(vii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each date on which the annual financial statements are required to be delivered for any fiscal year of the Borrower, commencing (beginning with the fiscal year ending on December 31June 30, 2007, and (ii2015) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a6.01(a), if the Borrower shall Total Leverage Ratio is greater than or equal to 2.00:1.00 for the Test Period ending on the last day of such fiscal year, the Borrowers will prepay outstanding the Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), hereunder in an aggregate principal amount equal to 75% (or, if the Required Prepayment Percentage Total Leverage Ratio is less than 2.50:1.00 but greater than or equal to 2.00:1.00 for the Test Period ending on the last day of such fiscal year, 50%) of the Excess Cash Flow for the such fiscal year then ended less (or, in the case of the prepayment under this clause (vii) for the period ending on June 30, 2015, for the period of two consecutive fiscal quarters ending on such date) minus the aggregate amount of all Voluntary Prepayments voluntary prepayments of the Term Loans, and Delayed Draw Term Loans and, to the extent accompanied by a permanent reduction of the Revolving Commitments, Revolving Loans, during such fiscal year.year or period of two consecutive fiscal quarters, as applicable (but, in the case of Term Loans and, only to the extent that such voluntary prepayments were applied pro rata to remaining installments of the Term Loans or Delayed Draw Term Loans, as applicable);
(viviii) The Borrower (A) Each prepayment of Loans pursuant to this Section 2.03(b) shall deliver be applied first to the Administrative Agent, at Term Loans and any Delayed Draw Term Loans then outstanding (and applied pro rata to the time remaining installments thereof in inverse order of each prepayment required under this Section 2.05(bmaturity), then to the outstanding Revolving Loans and lastly, to the Cash Collateralization of Letters of Credit, (iB) a certificate signed by a Responsible Officer of each such prepayment shall be paid to the Borrower setting forth Lenders in reasonable detail the calculation of the amount accordance with their respective Pro Rata Shares of such prepayment and (iiC) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding shall not result in a permanent reduction of in the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (ARC Group Worldwide, Inc.), Credit Agreement
Mandatory. (i) In To the event extent that the Net Cash Proceeds of any termination of all of the Revolving Credit CommitmentsAsset Sale or Extraordinary Receipt exceeds $10,000,000, the Borrower shall, on the date shall prepay an aggregate principal amount of Loans equal to 100% of such terminationexcess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in good faith intends to use such Net Cash Proceeds to acquire, repay improve or prepay maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for capital assets to be used in any line of business not prohibited by Section 7.07, then on or before the 365th day after such Asset Sale to the extent that, within such 365 day period, the Relevant Parties have not used such Net Cash Proceeds for such purpose, provided, that prepayment shall be required with such Net Cash Proceeds promptly after any earlier date on which the Borrower has determined not to use such Net Cash Proceeds for any such purpose) (all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations such prepayments to be applied as set forth in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(gclause (iii) below). .
(ii) If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectAggregate Commitments, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.04(b) unless after the prepayment in full of the Revolving Loans and Swing Line Loans L/C Borrowings, the Total Outstandings exceed the Total Revolving Credit Aggregate Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Prepayments of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Facility made pursuant to this Section 2.05 2.04(b) shall be subject applied, first, ratably to Section 3.05the L/C Borrowings, but shall otherwise be without premium or penalty.
second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans (vii) Mandatory other than the Swingline Loans), fourth, ratably to the outstanding Eurodollar Rate Loans, and fifth, in the case of prepayments under sub-paragraphs Section 2.04(b)(ii) only, to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Facility required pursuant to clause (i) or (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid2.04(b), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Loans outstanding at such mandatory prepayment shall be applied (A) time and, in the case of prepayments under Section 2.04(b)(ii) only, the applicable principal amount Cash Collateralization of the Tranche B Term Loans being so prepaidremaining L/C Obligations in full, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to be used reimburse the L/C Issuer or the Lenders, as applicable. Prepayments of the Facility made pursuant to this Section 2.04(b) shall not result in accordance with a permanent reduction of the provisions of this AgreementCommitments.
Appears in 2 contracts
Sources: Credit Agreement (Western Refining Logistics, LP), Credit Agreement (Western Refining Logistics, LP)
Mandatory. (i) In To the event extent that the Net Cash Proceeds of any termination Asset Sale or Extraordinary Receipt exceeds $15,000,000 per Asset Sale or receipt of all of the Revolving Credit CommitmentsExtraordinary Receipts, the Borrower shall, on shall deliver the date notice required under Section 6.3(e) hereunder (it being agreed and understood that failure to deliver such notice shall not constitute a Default or Event of Default hereunder) and prepay an aggregate principal amount of Loans equal to 100% of such terminationexcess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in good faith intends to use such Net Cash Proceeds to acquire, repay improve or prepay maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for capital assets to be used in any line of business not prohibited by Section 7.7, then on or before the 365th day after such Asset Sale to the extent that, within such 365 day period, the Relevant Parties have not used such Net Cash Proceeds for such purpose, provided, that prepayment shall be required in an amount equal to 100% of such Net Cash Proceeds promptly after any earlier date on which the Borrower has determined not to use such Net Cash Proceeds for any such purpose) (all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations such prepayments to be applied as set forth in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(gclause (iii) below). .
(ii) If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectAggregate Commitments, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.4(b) unless after the prepayment in full of the Revolving Loans and Swing Line Loans L/C Borrowings, the Total Outstandings exceed the Total Revolving Credit Aggregate Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Prepayments of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Facility made pursuant to this Section 2.05 2.4(b) shall be subject applied, first, ratably to Section 3.05the L/C Borrowings, but shall otherwise be without premium or penalty.
second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans (vii) Mandatory other than the Swingline Loans), fourth, ratably to the outstanding Eurodollar Rate Loans, and fifth, in the case of prepayments under sub-paragraphs Section 2.4(b)(ii) only, to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Facility required pursuant to clause (i) or (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid2.4(b), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Loans outstanding at such mandatory prepayment shall be applied (A) time and, in the case of prepayments under Section 2.4(b)(ii) only, the applicable principal amount Cash Collateralization of the Tranche B Term Loans being so prepaidremaining L/C Obligations in full, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to be used reimburse the L/C Issuer or the Lenders, as applicable. Prepayments of the Facility made pursuant to this Section 2.4(b) shall not result under any circumstance in accordance with a permanent reduction of the provisions of this AgreementCommitments.
Appears in 2 contracts
Sources: Revolving Credit Agreement (PBF Energy Inc.), Revolving Credit Agreement (PBF Logistics LP)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Aggregate Commitments then in effect, the Borrower shall immediately prepay or repay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.05(b) unless after the prepayment in full of the Revolving Loans and the Swing Line Loans Loans, the Total Outstandings exceed the Total Revolving Credit Aggregate Commitments then in effect.
(ii) Not later than To the fifth Business Day following extent that the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt aggregate amount of Net Cash Proceeds resulting therefromof Asset Sales and Net Cash Proceeds of Casualty Events received by all Loan Parties and Restricted Subsidiaries in a fiscal year exceeds five percent (5%) of Consolidated Net Tangible Assets of the Parent Guarantor as of the end of the most recently ended fiscal year, the Borrower shall apply the Required Prepayment Percentage an amount equal to 100% of such excess Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize outstanding Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(iv).
(iii) In the event and on each occasion that a Specified Equity Issuance occursthe Parent Guarantor, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Restricted Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party for money borrowed (other than any cash proceeds from the issuance of Indebtedness permitted pursuant to Section 8.02), 7.01) the Borrower shall, substantially simultaneously with (and in any event not later than the fifth shall within three Business Day next following) following the receipt of such Net Cash Proceeds by such Loan Party the Parent Guarantor, the Borrower or such Restricted Subsidiary, apply an amount equal to the Required Prepayment Percentage 100% of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize outstanding Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(iv).
(iv) Mandatory prepayments under this Section 2.05(b) shall be applied first, to outstanding Loans and, second, to Cash Collateralize outstanding Letters of Credit on a pro rata basis, in each case, with no corresponding permanent reduction of the Commitments.
(v) No later than the earlier Prepayments of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise and, to the extent interest is required to be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (iipaid pursuant to Section 2.08(c), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accompanied by accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with prepaid to but excluding the provisions date of this Agreementpayment.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Qep Resources, Inc.), Credit Agreement (QEP Midstream Partners, LP)
Mandatory. (iA) If the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 7.05 (except pursuant to Sections 7.05(j) or 7.05(k)) which results in the realization by such Person of Net Cash Proceeds in excess of an aggregate amount of $10,000,000 per fiscal year, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of such Net Cash Proceeds in excess of such $10,000,000 no later than five (5) Business Days following receipt thereof by such Person (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below) and (B) notwithstanding anything to the contrary in subclause (A) above, if at the time of any Disposition pursuant to Section 7.05(l) the Total Facility Amount is in excess of $350,000,000 (the “Facility Cap”), the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of all Net Cash Proceeds received therefrom no later than five (5) Business Days following receipt thereof by the Borrower or such Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses first and second of clause (v) below and clause (vii) below) but only to the extent required to reduce the Total Facility Amount to the Facility Cap and, if after giving effect to the application of proceeds described in clause first of clause (v) below, there remain any Net Cash Proceeds from the Disposition pursuant to Section 7.05(l), the Incremental Capacity shall be reduced on a dollar for dollar basis in an amount equal to such remainder to the extent required to reduce the Total Facility Amount to the Facility Cap).
(ii) In the event of that there shall be Consolidated Excess Cash Flow for any termination of all of Fiscal Year (commencing with the Revolving Credit CommitmentsFiscal Year ending September 30, 2012), the Borrower shall, on no later than 95 days after the date end of such terminationFiscal Year (or, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize in the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit case of the Secured Parties in Fiscal Year ending September 30, 2012, 120 days after the manner described in Section 2.03(gend of such Fiscal Year). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or (or Cash Collateralize the L/C Obligations in Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to the ECF Percentage of such Consolidated Excess Cash Flow less an amount equal to such excess; provided, however, that the aggregate principal amount of Term Loans voluntarily prepaid by the Borrower shall during such Fiscal Year pursuant to Section 2.05(a) with internally generated cash of the Borrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests and excluding any Term Loans purchased pursuant to Section 10.06(b)(vii)) (such amount, the “Excess Cash Flow Amount”), to be applied as set forth in clauses (v) and (vii) below); provided that in respect of the mandatory prepayment required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.05(b)(ii) unless after for the Fiscal Year ending September 30, 2012, such prepayment shall be in full of amount equal to the Revolving Loans and Swing Line Loans Excess Cash Flow Amount for such Fiscal Year multiplied by the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)2012 ECF Pro Ration Amount.
(iii) In Upon the event and on each occasion that a Specified Equity Issuance occurs, incurrence or issuance by the Borrower shall, substantially simultaneously with or any of its Subsidiaries of any Indebtedness (and in any event not later other than the fifth Business Day next followingIndebtedness expressly permitted to be incurred or issued pursuant to Section 7.03) the occurrence Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of such Specified Equity Issuance and the receipt Pro Rata Obligations equal to 100% of all Net Cash Proceeds resulting therefrom, apply received therefrom immediately upon receipt thereof by the Required Prepayment Percentage of Borrower or such Net Subsidiary (such prepayments (or Cash Proceeds therefrom Collateralization) to prepay outstanding Loans and/or Cash Collateralize Letters of Credit be applied as set forth in accordance with Section 2.05(b)(viiclauses (v) and (vii) below).
(iv) In Upon any Extraordinary Receipt received by or paid to or for the event that any Loan Party account of the Borrower or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party its Subsidiaries and not otherwise included in clause (other than Indebtedness permitted pursuant to Section 8.02i), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii), or (iii) the date on which the financial statements with respect to such period are delivered pursuant to of this Section 7.01(a2.05(b), the Borrower shall prepay outstanding Loans and/or (or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Collateralize, in as applicable) an aggregate principal amount of Pro Rata Obligations equal to the Required Prepayment Percentage 100% of Excess all Net Cash Flow for the Proceeds received therefrom in excess of $10,000,000 per fiscal year then ended less the aggregate amount of all Voluntary Prepayments during no later than five (5) Business Days following receipt thereof by such fiscal yearPerson (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below.
(viv) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such Each prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice or Cash Collateralization, as applicable) of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Pro Rata Obligations pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii2.05(b) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: , first, to prepay outstanding the Term Loans on a pro rata basis (held by all Term Lenders in accordance with the respective outstanding principal amounts thereof) their Applicable Percentages (allocated to the full extent next four principal repayment installments thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)and, subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; secondthereafter, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of remaining principal repayment installments thereof and the Term Loans as described belowrepayment at the final maturity thereof), thensecond, with respect to such mandatory prepayment, any excess after the amount application of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used proceeds in accordance with clause first above, to the provisions of this Agreement.Revolving Credit Facility in the manner set forth in clause
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Post Holdings, Inc.)
Mandatory. (i) In Within five Business Days after the event of any termination of all of the Revolving Credit Commitments, date the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established is required to deliver financial statements pursuant to Section 5.03(b) (commencing with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(gFiscal Year ended January 31, 2009). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations Advances in an aggregate amount equal to the amount by which (A) the Prepayment Percentage of Excess Cash Flow, if any, for the Fiscal Year covered by such excess; provided, however, that financial statements exceeds (B) the Borrower shall not be required to Cash Collateralize the L/C Obligations aggregate amount of all voluntary prepayments made during such fiscal year pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect2.04(a).
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or The Borrower shall, not later than the tenth five Business Day following the occurrence Days after receipt of any Recovery Event and, Net Cash Proceeds by any Loan Party or any of its Subsidiaries (if not reinvested in each case, accordance with the receipt definition of Net Cash Proceeds resulting therefrom, Proceeds) prepay an aggregate principal amount of the Borrower shall apply Advances comprising part of the Required Prepayment Percentage same Borrowings in an amount equal to the amount of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Proceeds.
(iii) In Each prepayment of Advances pursuant to clause (i) or (ii) of this Section 2.04(b) shall be applied in direct order to the event and on each occasion that a Specified Equity Issuance occurs, remaining principal repayment installments of the Borrower shall, substantially simultaneously with (and Facility until all such installments are paid in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)full.
(iv) In All prepayments under this subsection (b) shall be made together with accrued interest to the event that date of such prepayment on the principal amount prepaid, and subject to Section 2.04(v) below, together with any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted amounts owing pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii9.04(c).
(v) No later In lieu of making any prepayment pursuant to this subsection (b) in respect of any Eurodollar Rate Advance other than on the earlier of (i) 90 days after the end of each fiscal year last day of the BorrowerInterest Period therefor, commencing with the fiscal year ending on December 31, 2007, so long as no Event of Default shall have occurred and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)be continuing, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance at its option may deposit with Section 2.05(b)(vii), in the Administrative Agent an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during the Eurodollar Rate Advance to be prepaid and such fiscal year.
(vi) The Borrower Eurodollar Rate Advance shall deliver be repaid on the last day of the Interest Period therefor in the required amount. Such deposit shall be held by the Administrative Agent in a corporate time deposit account established on terms reasonably satisfactory to the Administrative Agent, earning interest at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount then-customary rate for accounts of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penaltytype.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Express Parent LLC), Term Loan Credit Agreement (Express Parent LLC)
Mandatory. (i) In Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in related Compliance Certificate has been delivered pursuant to Section 2.03(g6.02(b). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit cause to be prepaid an aggregate principal amount of Term Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 50% of Excess Cash Flow, if any, for the fiscal year covered by such excessfinancial statements (commencing with the fiscal year ended February 28, 2005, which fiscal year shall be for the period from the Closing Date through February 28, 2005); providedprovided that (A) if the Borrower is unable to prepay all or any portion (a "shortfall amount") of the principal amount of the Term Loans required by this Section 2.05(b)(i) with respect to the Excess Cash Flow for any fiscal year solely because no funds are available to the Borrower to make such prepayment (such availability to be determined after giving effect to funds held by, howeveror available to, Restricted Subsidiaries that may be remitted after receipt of all necessary regulatory approvals, directly or indirectly, to the Borrower but not taking into account any Indebtedness that may be incurred by any Restricted Subsidiaries) other than funds held by any Regulated Subsidiary which funds may not be remitted to an Unregulated Person, whether pursuant to intercompany loans, distributions on equity or otherwise, without causing a Mandatory Prepayment Net Capital Deficiency with respect to such Regulated Subsidiary to occur, then the Borrower shall not be required to Cash Collateralize make the L/C Obligations pursuant portion of such prepayment equal to this Section 2.05(b)(ithe shortfall amount until the date on which any Regulated Subsidiary is able to remit such funds to an Unregulated Person without causing a Mandatory Prepayment Net Capital Deficiency and (B) unless after such percentage shall be reduced to (1) 25% if the prepayment in full Leverage Ratio as of the Revolving Loans last day of the immediately preceding four fiscal quarters was less than 4.0:1 and Swing Line Loans (2) 0% if the Total Outstandings exceed Leverage Ratio as of the Total Revolving Credit Commitments then in effectlast day of the immediately preceding four fiscal quarters was less than 3.0:1.
(ii) Not later than (A) If (x) Holdings, the fifth Business Day following the completion Borrower or any of its Restricted Subsidiaries Disposes of any Asset Sale and/or not later property or assets (other than the tenth Business Day following the occurrence any Disposition of any Recovery property or assets (1) permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) , (▇), (▇), (▇) or (n) or (2) consummated by any Regulated Subsidiary to the extent, and for so long as, the Net Cash Proceeds thereof may not be remitted to an Unregulated Person, (aa) as a result of the failure to receive necessary regulatory approvals or (bb) pursuant to intercompany loans, distributions on equity or otherwise, without causing a Mandatory Prepayment Net Capital Deficiency with respect to such Regulated Subsidiary to occur), or (y) any Casualty Event and(other than any Casualty Event with respect to any Regulated Subsidiary to the extent, and for so long as, the Net Cash Proceeds thereof may not be remitted to an Unregulated Person, (aa) as a result of the failure to receive necessary regulatory approvals or (bb) pursuant to intercompany loans, distributions on equity or otherwise, without causing a Mandatory Prepayment Net Capital Deficiency with respect to such Regulated Subsidiary to occur), which, in each either case, in the aggregate results in the realization or receipt by Holdings, the Borrower or such Restricted Subsidiary of Net Cash Proceeds resulting therefromProceeds, in excess of $1,000,000 in any fiscal year, the Borrower shall apply cause to be prepaid on or prior to the Required Prepayment Percentage date which is ten (10) Business Days after the date of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party realization or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) if, on or prior to such date, the Required Prepayment Percentage Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
2.05(b)(ii)(B) (v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to election may only be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that made if no Lenders decline a given mandatory prepayment Event of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 Default has occurred and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (iiis then continuing), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.;
Appears in 2 contracts
Sources: Credit Agreement (Refco Inc.), Credit Agreement (Refco Information Services, LLC)
Mandatory. (i) In To the event extent that the Net Cash Proceeds of any termination Asset Sale or Extraordinary Receipt exceeds $25,000,000 per Asset Sale or receipt of all of the Revolving Credit CommitmentsExtraordinary Receipts, the Borrower shall, on shall deliver the date notice required under Section 6.3(e) hereunder (it being agreed and understood that failure to deliver such notice shall not constitute a Default or Event of Default hereunder) and prepay an aggregate principal amount of Loans equal to 100% of such terminationexcess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in good faith intends to use such Net Cash Proceeds to acquire, repay improve or prepay maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for capital assets to be used in any line of business not prohibited by Section 7.7, then on or before the 365th day after such Asset Sale to the extent that, within such 365 day period, the Relevant Parties have not used such Net Cash Proceeds for such purpose, provided, that prepayment shall be required in an amount equal to 100% of such Net Cash Proceeds promptly after any earlier date on which the Borrower has determined not to use such Net Cash Proceeds for any such purpose) (all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations such prepayments to be applied as set forth in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(gclause (iii) below). .
(ii) If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectAggregate Commitments, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.4(b) unless after the prepayment in full of the Revolving Loans and Swing Line Loans L/C Borrowings, the Total Outstandings exceed the Total Revolving Credit Aggregate Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Prepayments of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Facility made pursuant to this Section 2.05 2.4(b) shall be subject applied, first, ratably to Section 3.05the L/C Borrowings, but shall otherwise be without premium or penalty.
second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans (vii) Mandatory other than the Swingline Loans), fourth, ratably to the outstanding Eurodollar Rate Loans, and fifth, in the case of prepayments under sub-paragraphs Section 2.4(b)(ii) only, to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Facility required pursuant to clause (i) or (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid2.4(b), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Loans outstanding at such mandatory prepayment shall be applied (A) time and, in the case of prepayments under Section 2.4(b)(ii) only, the applicable principal amount Cash Collateralization of the Tranche B Term Loans being so prepaidremaining L/C Obligations in full, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to be used reimburse the L/C Issuer or the Lenders, as applicable. Prepayments of the Facility made pursuant to this Section 2.4(b) shall not result under any circumstance in accordance with a permanent reduction of the provisions of this AgreementCommitments.
Appears in 2 contracts
Sources: Revolving Credit Agreement (PBF Logistics LP), Revolving Credit Agreement (PBF Energy Co LLC)
Mandatory. (i) In The Crompton A Borrowers shall, on each Business Day, prepay an aggregate principal amount of the event Working Capital A Advances comprising part of any termination the same Borrowings, the Letter of Credit A Advances and the Swing Line A Advances equal to the amount by which (A) the sum of the aggregate principal amount of (x) the Working Capital A Advances, (y) the Letter of Credit A Advances and (z) the Swing Line A Advances then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding under the Working Capital A Facility exceeds (B) the Working Capital A Facility on such Business Day.
(ii) The Uniroyal B-1 Borrower shall, on each Business Day, prepay an aggregate principal amount of the Revolving Credit CommitmentsWorking Capital B-1 Advances comprising part of the same Borrowings, the Letter of Credit B-1 Advances and the Swing Line B-1 Advances equal to the amount by which (A) the sum of the aggregate principal amount of (x) the Working Capital B-1 Advances, (y) the Letter of Credit B-1 Advances and (z) the Swing Line B-1 Advances then outstanding plus the aggregate Available Amount of all Letters of Credit then outstanding under the Working Capital B-1 Facility exceeds (B) the Working Capital B-1 Facility on such Business Day.
(iii) Notwithstanding anything herein to the contrary, each B-2 Borrower shall, on the date first Business Day of each month, prepay such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters B-2 Borrower's Borrower's Share of Credit and/or Cash Collateralize the L/C Obligations any amount set forth in a cash collateral account established with the Collateral Agent for the benefit clause (b) of the Secured Parties in definition "B-2 Facility Overage" that exceeds the manner described in Section 2.03(g). If for any reason lesser of (A) US$10,000,000 minus the Total Outstandings B-3 Facility Overage at any such time exceed and (B) the Total Revolving Credit aggregate Unused Working Capital Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of Working Capital A Lenders at such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)time.
(iv) In Notwithstanding anything herein to the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02)contrary, the each B-3 Borrower shall, substantially simultaneously with (and in any event not later than on the fifth first Business Day next followingof each month, prepay such B-3 Borrower's Borrower's Share of any amount set forth in clause (b) of the definition "B-3 Facility Overage" that exceeds the lesser of (A) US$10,000,000 minus the B-2 Facility Overage at such time and (B) the receipt aggregate Unused Working Capital Commitments of the Working Capital A Lenders at such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)time.
(v) No later than the earlier of (i) 90 days after the end of The Canadian Borrower shall, on each fiscal year of the BorrowerBusiness Day, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount of the Canadian Borrower Advances comprising part of the same Borrowings equal to the Required Prepayment Percentage amount by which (A) the sum of Excess Cash Flow for the fiscal year then ended less (x) the aggregate principal amount of all Voluntary Prepayments during the Canadian Borrower Advances and (y) the aggregate Face Amount of Bankers' Acceptances then outstanding exceeds (B) the Canadian Facility on such fiscal yearBusiness Day.
(vi) The Borrower shall deliver Notwithstanding anything herein to the Administrative Agentcontrary, at the time Canadian Borrower shall, on the first Business Day of each prepayment required under this Section 2.05(b)month, prepay any amount set forth in clause (ib) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail definition "Canadian Facility Overage" that exceeds the calculation lesser of (A) US$10,000,000 and (B) the aggregate Unused Working Capital Commitments of the amount of Working Capital A Lenders at such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penaltytime.
(vii) Mandatory prepayments The Crompton A Borrowers shall, on each Business Day, pay to the Agent for deposit in the relevant L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such Account to equal the amount by which the aggregate Available Amount of all Letters of Credit then outstanding under sub-paragraphs the Working Capital A Facility exceeds the Letter of Credit A Facility on such Business Day.
(viii) The Uniroyal B-1 Borrower shall, on each Business Day, pay to the Agent for deposit in the relevant L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such Account to equal the amount by which the aggregate Available Amount of all Letters of Credit then outstanding under the Letter of Credit B-1 Facility exceeds the Letter of Credit B-1 Facility on such Business Day.
(ix) The Canadian Borrower shall, on each Business Day, pay to the Agent for deposit in the Canadian Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such Account to equal the amount by which the aggregate Face Amount of all Bankers' Acceptances then outstanding under the Canadian Facility exceeds the Canadian Facility on such Business Day.
(x) Prepayments of the Working Capital A Facility, Working Capital B-1 Facility, Working Capital B-2 Facility, Working Capital B-3 Facility or Canadian Facility made pursuant to clause (i), (ii), (iii), (iv) and ), (v) of this Section or (vi) above shall be applied: first, first applied to prepay Letter of Credit Advances then outstanding Term Loans on a pro rata basis (under such Facility until such Advances are paid in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)full, subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, second applied to prepay Swing Line Advances then outstanding Revolving Loans under such Facility until such Advances are paid in full, third applied to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction prepay Working Capital Advances then outstanding under such Facility comprising part of the Revolving Credit Commitments; same Borrowings until such Advances are paid in full and third, at any time when there shall be no Term Loans outstanding, fourth deposited in the relevant L/C Cash Collateral Account to Cash Collateralize any outstanding cash collateralize 100% of the Available Amount of the Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether under such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described belowFacility or, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount Canadian Facility, deposited in the Canadian Cash Collateral Account to cash collateralize 100% of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans Face Amount of all Bankers' Acceptances then outstanding.
(xi) All prepayments under this subsection (b) shall be made together with accrued interest to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the amount date of such prepayment that is re-offered to them, in which case on the aggregate principal amount of the prepayment that would have been applied to prepay such Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementprepaid.
Appears in 2 contracts
Sources: Credit Agreement (Crompton & Knowles Corp), Credit Agreement (Uniroyal Chemical Co Inc)
Mandatory. If, prior to the Conversion Date:
(i) In the Borrower or any of its Subsidiaries shall (1) incur any Indebtedness, Disqualified Stock or Preferred Stock which serves to refund or refinance any Indebtedness, Disqualified Stock or Preferred Stock incurred as permitted under Section 6.03(1)(w), (1)(x), (2), (13) or (14) (as it relates to Section 6.03(2) and (14) only) or any Indebtedness, Disqualified Stock or Preferred Stock issued to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including reasonable tender premiums), defeasance costs and fees in connection therewith or (2) issue any debt securities (including any Securities issued pursuant to a Securities Demand), then an amount equal to 100% of the Net Proceeds thereof shall be applied promptly (but in no event later than three Business Days) after the receipt thereof toward the prepayment of the Initial Loans;
(ii) the Borrower, Holdings or any of the Borrower’s Restricted Subsidiaries shall issue any public equity securities (other than (1) to the Equity Investors, (2) in connection with an acquisition permitted by the terms of this Agreement and (3) to employees pursuant to employee benefit plans in effect on the Closing Date), then an amount equal to 100% of the Net Proceeds thereof shall be applied promptly (but in no event later than ten Business Days) after the receipt thereof toward the prepayment of the Initial Loans; or
(iii) the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds in respect of any termination of all Prepayment Asset Sale or Property Loss Event, then an amount equal to 100% of the Revolving Credit CommitmentsNet Proceeds thereof, (subject to the restrictions set forth herein) shall be applied promptly (but not in no event later than ten Business Days) after the receipt thereof toward the prepayment of the Initial Loans; provided that if (A) prior to the date any such prepayment is required to be made, the Borrower shall, on notifies the date Administrative Agent of its intent to reinvest such Net Proceeds in assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries (including any Related Business Assets) and (B) no Event of Default shall have occurred and be continuing at the time of such terminationproposed reinvestment, repay and no Event of Default under clause (a) or prepay all outstanding Revolving Credit Loans (f) of Section 7.01 (each, a “Specified Default”) shall have occurred and all outstanding Swing Line Loans and replace all outstanding Letters shall be continuing at the time of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties proposed reinvestment (unless, in the manner described in Section 2.03(gcase of such Specified Default, such reinvestment is made pursuant to a binding commitment entered into at a time when no Specified Default was continuing). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments , then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment prepay Initial Loans hereunder in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage respect of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion extent that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters are so reinvested within 365 days after the date of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by (or, within such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)365 day period, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters or any of Credit its Restricted Subsidiaries enters into a binding commitment to so reinvest in accordance with Section 2.05(b)(viisuch Net Proceeds, and such Net Proceeds are so reinvested within 180 days after such binding commitment is so entered into); provided, in an aggregate principal amount equal however, that if any Net Proceeds are not reinvested or applied as a repayment on or prior to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer last day of the Borrower setting forth in reasonable detail the calculation of the amount of applicable application period, such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement Net Proceeds shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis within five Business Days to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Initial Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied set forth above (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans without regard to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (iiimmediately preceding proviso), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.; or
Appears in 2 contracts
Sources: Senior Bridge Loan Agreement (CDW Finance Corp), Senior Subordinated Bridge Loan Agreement (CDW Finance Corp)
Mandatory. (i) In If the event of Administrative Agent notifies the Company at any termination of all time that the Total Revolving Credit Outstandings at such time exceed an amount equal to 103% of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments Facility then in effect, then, within five Business Days after receipt of such notice, the Borrower Borrowers shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or the Company shall (or shall cause another Loan Party to) Cash Collateralize the L/C Obligations in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 103% of the Revolving Credit Facility then in effect; provided, however, that that, subject to the Borrower provisions of Section 2.16, the Company 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 Credit Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments Outstandings exceed 103% of the Revolving Credit Facility then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(ii) Not later than If the fifth Business Day following Administrative Agent notifies the completion Company at any time that the portion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, Total Revolving Credit Outstandings denominated in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of Alternative Currencies at such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply time exceeds an amount equal to 103% of the Required Prepayment Percentage Alternative Currency Sublimit then in effect, then, within five Business Days after receipt of such Net Cash Proceeds to notice, the Borrowers shall prepay outstanding Revolving Credit Loans and/or the Company shall Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), L/C Obligations in an aggregate principal amount equal sufficient to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during reduce such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer portion of the Borrower setting forth in reasonable detail the calculation Total Revolving Credit Outstandings as of such date of payment to an amount not to exceed 103% of the amount of such prepayment and (ii) to the extent practicableAlternative Currency Sublimit then in effect; provided, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment datehowever, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)that, subject to the provisions of sub-paragraph (viiiSection 2.16, the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(ii) below and any re-offer described therein; secondunless after the prepayment in full of the Revolving Credit Loans denominated in Alternative Currencies the portion of the Total Revolving Credit Outstandings denominated in Alternative Currencies exceeds 103% of the Alternative Currency Sublimit then in effect. The Administrative Agent may, at any time when there and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations. 62 158477613_2174043865_5
(iii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be no Term Loans outstandingapplied ratably to the L/C Borrowings and the Swing Line Loans, and second, shall be applied ratably to prepay the outstanding Revolving Credit Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding without any reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Amended and Restated Credit Agreement (Stericycle Inc)
Mandatory. (i) In If the event of any termination of all of the Revolving Credit Commitments, Administrative Agent notifies the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for at any reason time that the Total Outstandings in respect of Revolving Loans at any such time exceed the Total Aggregate Revolving Credit Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount at least equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than In the fifth Business Day following event that the completion Borrower or any of its Subsidiaries receives any Net Cash Proceeds (including into escrow) of any Asset Sale and/or not later incurrence, issuance, offering or placement of Indebtedness for borrowed money (other than the tenth Business Day following the occurrence Excluded Debt) or any issuance of any Recovery Event andequity securities or equity-linked securities (other than Excluded Equity), in each casecase on or after the Effective Date, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage then 100% of such Net Cash Proceeds received with respect thereto shall be applied, not later than three Business Days following the receipt by the Borrower or any such Subsidiary of such Net Cash Proceeds, to prepay outstanding the Loans and/or Cash Collateralize Letters of Credit and permanently reduce the Commitments as set forth in accordance with Section 2.05(b)(vii2.05(c).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in or any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of its Subsidiaries receives any Net Cash Proceeds resulting therefrom(including cash equivalents) of any Prepayment Asset Sale (other than any such Net Cash Proceeds that are reinvested in the business within six months (or nine months, apply to the Required Prepayment Percentage extent committed to be reinvested within six months) following receipt), then 100% of such Net Cash Proceeds therefrom shall be applied, not later than three Business Days following the receipt by the Borrower or any such Subsidiary of such Net Cash Proceeds, to prepay outstanding the Loans and/or Cash Collateralize Letters of Credit and permanently reduce the Commitments as set forth in accordance with Section 2.05(b)(vii2.05(c).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party The Borrower shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with promptly (and in any event not later than the fifth third Business Day next followingfollowing receipt thereof) notify the Administrative Agent of the receipt by the Borrower or, as applicable, any of its Subsidiaries, of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal referred to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and clauses (ii) the date on which the financial statements with respect to and (iii) above and such period are delivered pursuant to Section 7.01(a), the Borrower notice shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed be accompanied by a Responsible Officer of the Borrower setting forth in reasonable detail the reasonably detailed calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penaltyNet Cash Proceeds.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Qualcomm Inc/De)
Mandatory. (i) In the event of For any termination of all of the Revolving Credit CommitmentsExcess Cash Flow Period, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iwithin ten (10) unless Business Days after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted financial statements have been delivered pursuant to Section 8.02)6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, the Borrower shallif later, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the such financial statements with respect and such Compliance Certificate are required to such period are delivered pursuant to Section 7.01(abe delivered), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount of Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the Required Prepayment Percentage proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) at the fiscal year then ended less option of the Borrower, the aggregate amount (other than any amount applied to reduce the prepayment required under this clause (b) in respect of any prior year) and except to the extent such prepayment, repurchase, prepayment, expenditure or Restricted Payment is funded with the proceeds of long-term Indebtedness (other than revolving loans) of the sum of (1) the aggregate amount of all Voluntary Prepayments during such fiscal year.
voluntary prepayments and repurchases (viincluding prepayments at a discount to par and open market purchases, with credit given for the actual amount of the cash payment) The made by the Borrower shall deliver or any of its Restricted Subsidiaries (or committed to be made) of (u) Initial Term Loans, 2022 Incremental Term Loans, 2023 Term Loans or, 2024 Term Loans or 2024 Term B-2 Loans, (v) New Term Loans, (w) Refinanced First Lien Indebtedness, (x) the “Loans” as defined in the ABL Credit Agreement as in effect on the Closing Date, (y) other Indebtedness that is secured by the Collateral on a first lien pari passu basis with Liens securing the Obligations and (z) any refinancing, replacement or extension of any of the foregoing (in each case of prepayments of a revolving facility or “Loans” as defined in the ABL Credit Agreement as in effect on the Closing Date, to the Administrative Agentextent accompanied by a corresponding permanent commitment reduction), (2) [reserved], (3) the aggregate amount of all capital expenditures and Investments made (or committed to be made subject to reversal of such deduction if any such committed amount is not actually expended within a twelve-month period after commitment thereof) in cash, and (4) Restricted Payments (other than non- cash Restricted Payments and Restricted Payments made pursuant to clause (3) of the second paragraph under Section 7.05), in each case, made (or committed to be made) during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the last day of the relevant Excess Cash Flow Period, or, at the time option of each the Borrower, on the date on which the relevant Excess Cash Flow prepayment is required to be made (such amounts in clauses (1) through (4), “ECF Deductions”) and such ECF Deductions may be applied to reduce payments under this Section 2.05(b)(i) in respect of subsequent Excess Cash Flow Periods to the extent the amount of such ECF Deductions exceeds the amount of payments required under this Section 2.05(b), (i2.05(b)(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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans current Excess Cash Flow Period; provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates (but giving Pro Forma Effect to any payment under this Section 2.05 made after the last day of the year to which such Excess Cash Flow Period relates but prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made) was equal to or less than 4.00 to 1.00 or 3.50 to 1.00, respectively; provided further that no prepayment shall be required with respect to any Excess Cash Flow Period to the extent Excess Cash Flow for such period is equal to or less than (the “ECF Threshold”) the greater of $21,000,000 and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments 10.0% of Consolidated EBITDA of the Group Parties (and only amounts in excess of the ECF Threshold shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective payment thereof). Notwithstanding anything to the contrary in the foregoing, the Borrower may elect to use a portion of whether such outstanding Term Loans are Base Rate Loans amount of payments otherwise required under this Section 2.05(b)(i) in respect of any such Excess Cash Flow Period to prepay or Eurocurrency Rate Loans; provided repurchase any other Indebtedness that if no Lenders decline a given mandatory prepayment is secured by the Collateral, in each case in an amount not to exceed the product of the Term Loans as described below, then, with respect to such mandatory prepayment, (1) the amount of such mandatory prepayment shall be applied (Apayments otherwise required under this Section 2.05(b)(i) in respect of such Excess Cash Flow Period and (2) a fraction, the case numerator of which is the applicable outstanding principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans such other Indebtedness (or to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the such amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.not in
Appears in 1 contract
Mandatory. (i) In the event of any termination of all and on each date that the aggregate amount of the Revolving Credit CommitmentsExposures exceeds an amount equal to (A) the lesser of (1) the aggregate Commitments at such time, (2) the Borrowing Base at such time and (3) the Facilities Reduction Amount at such time, minus (B) the Availability Block, minus (C) the Specified Reserves, plus (D) the Overadvance Maximum Amount at such time, plus (E) the Special Agent Loan Maximum Amount at such time, the Borrower shall, on the date of such termination: first, repay or prepay Revolving Borrowings or Swingline Loans (or a combination thereof) and second, after all outstanding Revolving Credit Borrowings and Swingline Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations have been repaid in a full, deposit cash collateral in an account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in pursuant to Section 2.03(g2.03(l). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided. Notwithstanding the foregoing, howeverin the case of any repayment or prepayment required to be made pursuant to this paragraph due to (x) a reduction by the Administrative Agent of the Overadvance Maximum Amount or the Special Agent Loan Maximum Amount or (y) the Borrowing Base in effect at any time, that as determined by the Administrative Agent, being less than the amount set forth as the “Borrowing Base” in the Borrowing Base Certificate most recently delivered by the Borrower prior to such time pursuant to Section 2.15(a), 4.01(a)(xi) or 6.17(a) (other than, in the case of clause (y), as a result of any Designated Subsidiary ceasing to be such pursuant to Section 2.15(b) or the consummation of any Disposition), the Borrower shall not be required to Cash Collateralize the L/C Obligations make any repayment or prepayment pursuant to this Section 2.05(b)(i) unless paragraph until the fifth Business Day after the date of notice of such reduction, or of such deficiency, to the Borrower by the Administrative Agent. Any repayment or prepayment made pursuant to this paragraph shall not, in full itself, result in a reduction of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectany Commitment.
(ii) Not later than If the fifth Business Day following the completion Borrower or any of its Subsidiaries Disposes of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andABL Collateral in a Disposition referred to in Section 7.05(g), in each case, the receipt of Net Cash Proceeds resulting therefrom7.05(h) or 7.05(i), the Borrower shall apply repay the Required Prepayment Percentage Loans in an amount equal to the lesser of such (A) the unpaid principal amount of all outstanding Loans and all interest accrued and unpaid thereon and (B) the sum of (1) the Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or ABL Collateral as a result of any such Disposition and (2) the amount of any non-cash proceeds received with respect to ABL Collateral as a result of any such Disposition valued, in the case of Indebtedness, at par. Any repayment or prepayment under this paragraph shall be made at such time as shall be determined by the Borrower; provided, that, with respect to any Net Cash Collateralize Letters Proceeds required to be applied to any such repayment or prepayment, such repayment or prepayment shall be made prior to the time when such Net Cash Proceeds would otherwise become “Excess Proceeds” under and as defined in the New Indenture (or any other indenture governing any Indebtedness of Credit the Borrower), or would otherwise become subject to the requirement that they be applied to make an offer to purchase the New Subordinated Notes (or any refinancing Indebtedness in accordance with Section 2.05(b)(viirespect thereof).
(iii) In Notwithstanding any of the event and on each occasion that a Specified Equity Issuance occursforegoing provisions of this Section 2.06(b) (but subject to the proviso set forth in paragraph (b)(ii) above), with respect to any prepayment of Eurodollar Rate Loans required to be made hereunder, the Borrower shallin its sole discretion may, substantially simultaneously with (and in any event not lieu of prepaying such Loans on the date due, deposit, no later than such date due, into a Cash Collateral Account an amount in cash equal to the fifth Business Day next following) the occurrence amount of such Specified Equity Issuance required prepayment (including any accrued interest). The Administrative Agent is hereby authorized and directed (without any further action by or notice to or from the receipt of Net Cash Proceeds resulting therefrom, Borrower or any other Loan Party) to apply the Required Prepayment Percentage amounts so deposited to the prepayment of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit and accrued interest thereon in accordance with this Section 2.05(b)(vii).
(iv2.06(b) In on the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year last day of the Borrowerapplicable Interest Period (or, commencing with the fiscal year ending on December 31if earlier, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(aan Event of Default shall have occurred and is continuing), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
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Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Aggregate Commitments then in effect, the Borrower shall immediately prepay or repay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.05(b) unless after the prepayment in full of the Revolving Loans and the Swing Line Loans Loans, the Total Outstandings exceed the Total Revolving Credit Aggregate Commitments then in effect.
(ii) Not later than To the fifth Business Day following extent that the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt aggregate amount of Net Cash Proceeds resulting therefromof Asset Sales and Net Cash Proceeds of Casualty Events received by all Loan Parties and Restricted Subsidiaries in a fiscal year exceeds five percent (5%) of Consolidated Net Tangible Assets of the Parent Guarantor as of the end of the most recently ended fiscal year, the Borrower shall apply the Required Prepayment Percentage an amount equal to 100% of such excess Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize cash collateralize outstanding Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(iv).
(iii) In the event and on each occasion that a Specified Equity Issuance occursthe Parent Guarantor, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Restricted Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party for money borrowed (other than any cash proceeds from the issuance of Indebtedness permitted pursuant to Section 8.02), 7.01) the Borrower shall, substantially simultaneously with (and in any event not later than the fifth shall within three Business Day next following) following the receipt of such Net Cash Proceeds by such Loan Party the Parent Guarantor, the Borrower or such Restricted Subsidiary, apply an amount equal to the Required Prepayment Percentage 100% of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize cash collateralize outstanding Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(iv).
(iv) Mandatory prepayments under this Section 2.05(b) shall be applied first, to outstanding Loans and, second, to Cash Collateralize outstanding Letters of Credit on a pro rata basis, in each case, with no corresponding permanent reduction of the Commitments.
(v) No later than the earlier Prepayments of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise and, to the extent interest is required to be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (iipaid pursuant to Section 2.08(c), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accompanied by accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with prepaid to but excluding the provisions date of this Agreementpayment.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. Without limiting anything contained herein, the Borrower agrees to the following:
(i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings if at any time exceed any Loan remains outstanding for five (5) or more Business Days after such Loan was advanced by the Total Revolving Credit Commitments then in effectLenders, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize without notice or demand pay over the L/C Obligations in an aggregate amount equal of such Loan to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize Administrative Agent for the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full account of the Revolving Loans Lenders as and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.for a mandatory prepayment on such Obligations;
(ii) Not later than if at any time the fifth Business Day following sum of the completion principal amount of any Asset Sale and/or not later than the tenth Business Day following NSCC Margin Loans then outstanding shall be in excess of the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefromBorrowing Base (NSCC Margin) as then determined and computed, the Borrower shall apply immediately and without notice or demand pay over the Required Prepayment Percentage amount of the excess to the Administrative Agent as and for a mandatory prepayment on such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).Obligations;
(iii) In without notice or demand, prepay any NSCC Margin Loan in full on the event and on each occasion that a Specified Equity Issuance occurs, date upon which the Borrower shall, substantially simultaneously with (and in any event not later than NSCC Margin Deposits funded from the fifth Business Day next following) the occurrence proceeds of such Specified Equity Issuance and NSCC Margin Loan are returned to the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).Borrower;
(iv) In if at any time the event that any Loan Party or any Subsidiary sum of a Loan Party the principal amount of the Reserve Loans then outstanding shall receive Net Cash Proceeds from be in excess of the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party Borrowing Base (other than Indebtedness permitted pursuant to Section 8.02)Reserve) as then determined and computed, the Borrower shallshall immediately and without notice or demand pay over the amount of the excess to the Administrative Agent as and for a mandatory prepayment on such Obligations;
(v) without notice or demand, substantially simultaneously with (and prepay any Reserve Loan on the next computation date of the Reserve Account in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage lesser of (A) the full amount of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, Reserve Loan and (iiB) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.excess cash that is permitted to be withdrawn from the Reserve Account; and
(vi) The Borrower shall deliver shall, on each date the Commitments are reduced pursuant to Section 1.10 hereof, prepay the Administrative AgentRevolving Loans and Swing Loans, at by the time of each prepayment required under this Section 2.05(b)amount, (i) a certificate signed by a Responsible Officer if any, necessary to reduce the sum of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the aggregate principal amount of Revolving Loans and Swing Loans then outstanding to the amount to which the Commitments have been so prepaid), with no corresponding reduction reduced.
1.4. Section 5.1 of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied hereby is amended by (Ai) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 amending and restating certain defined terms set forth below and (Bii) inserting new defined terms in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Sectiontheir appropriate alphabetical order, in which each case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the amount of such prepayment that is re-offered to them, read in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.their entirety as follows:
Appears in 1 contract
Sources: Credit Agreement (StoneX Group Inc.)
Mandatory. (i) In The Borrower shall, on each date the event Revolving Credit Commitments are reduced pursuant to Section 2.11, prepay the Swingline Loans, 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 Swingline Loans, Revolving Loans, and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ii) If at any termination time the sum of the unpaid principal balance of the Term Loans, the Incremental Term Loans (if any), Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the Availability as determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall within three (3) Business Days and without notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Swingline Loans and Revolving Loans until paid in full, then to the Term Loans and the Incremental Term Loans (if any) on a combined ratable basis with respect to all such Loans until such Loans are paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Guaranteed Obligations owing with respect to the Letters of Credit.
(iii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to any outstanding Loans under the Revolving Facility, but without a reduction of the Revolving Credit Commitments, until payment in full thereof with any balance applied ratably to the Borrower shall, on outstanding Loans under the date Term Loan Facilities. Each prepayment of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters under this Section 2.8(b) shall be made by the payment of Credit and/or Cash Collateralize the principal amount to be prepaid. Each cash collateralization of L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit made in accordance with Section 2.05(b)(vii)9.4.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. (i) In If the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding the Revolving Credit Loans and all outstanding Swing Line Loans and/or Loans, and, if necessary, Cash Collateralize the L/C Obligations in an by the amount necessary to reduce the sum of the aggregate principal amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the of Revolving Loans and L/C Obligations pursuant then outstanding to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings an amount which does not exceed the Total Revolving Credit Commitments then in effect. If at any time the Credit Availability as then determined and computed (including in the most recent Available Amount Certificate delivered in accordance with Section 8.5(d) or Section 8.5(m) hereof) shall be less than $0, the Borrower shall within five (5) Business Days, and without notice or demand, pay an amount equal to the amount necessary to increase the Credit Availability to $0 to the Administrative Agent for the account of the Lenders as a mandatory prepayment on such Obligations.
(ii) Not later than All prepayments under this Section 1.8(b) shall first be applied to the fifth Business Day following Revolving Loans until paid in full, then to the completion Term Loans and the Incremental Term Loans (if any) on a combined ratable basis with respect to all such Loans until such Loans are paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit. Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any Asset Sale and/or not later than balance applied to Borrowings of Eurodollar Loans in the tenth Business Day following order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.8(b) shall be made by the occurrence payment of any Recovery Event the principal amount to be prepaid and, in each case, the receipt case of Net Cash Proceeds resulting therefrom, any Eurodollar Loans accrued interest thereon to the Borrower date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit be made in accordance with Section 2.05(b)(vii)9.4 hereof.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Monmouth Real Estate Investment Corp)
Mandatory. In the event that Borrower or any of its Subsidiaries intends to make any Asset Sale (other than an Exempt Asset Sale) that would involve an aggregate sale price (including cash and non-cash consideration) in excess of 10% of Consolidated Total Assets as of the most recent fiscal year end with respect to which the Administrative Agent and the Lenders shall have received the financial statements referred to in Section 7.1(a)(i):
(i) In the Borrower will give the Administrative Agent, not later than the date of such Asset Sale, written notice thereof specifying the manner in which the Borrower intends to apply the Net Proceeds of such Asset Sale, and, in the event that the Borrower elects to make a voluntary prepayment, repurchase, redemption or retirement of any termination of the Senior Debt Securities with any of such Net Proceeds, then, at the request of the Required Lenders, the Borrower shall simultaneously pay or prepay the outstanding Advances, if any, and reduce the Commitments, in the amount specified by the Required Lenders, such amount in any event not to exceed the amount equal to the percentage of the Net Proceeds applied or to be applied to such voluntary prepayment, repurchase, redemption or retirement of Senior Debt Securities obtained by dividing (1) the then current Aggregate Commitment by (2) the sum of (x) the aggregate then outstanding principal amount of all Senior Debt Securities plus (y) the then current Aggregate Commitment; and
(ii) if the Borrower shall not previously have made any payment or prepayment of the Revolving Credit CommitmentsAdvances with the Net Proceeds of such Asset Sale pursuant to the terms of clause (i) above, the Borrower will give the Administrative Agent, not later than the date which is 250 days after the date of such Asset Sale, written notice specifying the amount of the Net Proceeds of such Asset Sale which, on the date which is 270 days after the date of such Asset Sale, are expected by the Borrower to become Excess Proceeds, then, at the request of the Required Lenders, the Borrower shall, on simultaneously with the date purchase of such terminationany Senior Debt Securities pursuant to the Senior Indenture, repay pay or prepay all the outstanding Revolving Credit Loans Advances, if any, and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize reduce the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties Commitments, in the manner described amount specified by the Required Lenders, such amount in Section 2.03(g). If for any reason the Total Outstandings at any time event not to exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to the percentage of the Net Proceeds of such excessAsset Sale exceeding $10,000,000.00 obtained by dividing (1) the then current Aggregate Commitment by (2) the sum of (x) the aggregate then outstanding principal amount of all Senior Debt Securities plus (y) the Aggregate Commitment; provided, however, that and The Administrative Agent hereby agrees to promptly notify each of the Lenders of receipt by the Administrative Agent of any notice from 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender2.6(b). Each notice of prepayment shall specify the prepayment date, the Class Payments and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii2.6(b) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans Advances and then to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Eurodollar Rate Loans Advances in a manner that minimizes the amount direct order of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementmaturities.
Appears in 1 contract
Sources: Credit Agreement (Dimon Inc)
Mandatory. (i) In If after the event of any termination of all of the Revolving Credit Commitments, Closing Date the Borrower shallor any Subsidiary shall issue any Indebtedness for Borrowed Money, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(e) and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect(g)-(m) hereof, the Borrower shall immediately promptly notify the Administrative Agent 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 all outstanding Revolving Credit the Term Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of such excess; provided, however, Net Cash Proceeds. The Borrower acknowledges that the Borrower its performance hereunder shall not be required limit the rights and remedies of the Lenders for any breach of Section 8.7 hereof or any other terms of the Loan Documents.
(ii) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Cash Collateralize Section 1.13 hereof, prepay the Revolving Loans and, if necessary, prefund the L/C Obligations pursuant by the amount, if any, necessary to this Section 2.05(b)(i) unless after reduce the prepayment in full sum of the aggregate principal amount of Revolving Loans and Swing Line Loans L/C Obligations then outstanding to the Total Outstandings exceed amount to which the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)have been so reduced.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, Unless the Borrower shallotherwise directs, substantially simultaneously prepayments of Loans under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with (and any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.9(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any event not later than Term Loans or Eurodollar Loans accrued interest thereon to the fifth Business Day next following) date of prepayment together with any amounts due the occurrence Lenders under Section 1.12 hereof. Each prefunding of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit L/C Obligations shall be made in accordance with Section 2.05(b)(vii)9.4 hereof.
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (CalAmp Corp.)
Mandatory. (i) The Borrower shall prepay in accordance with Section 2.04(c) amounts in the Distribution Suspense Account, to the extent required to be prepaid in accordance with Section 2.16(j)(ii).
(ii) In the event of any termination or reduction of all of the Revolving Credit CommitmentsWorking Capital Commitments pursuant to Section 2.05, the Borrower shall, on the date of such termination, shall repay or prepay all its outstanding Revolving Credit Working Capital Loans and all outstanding Swing Line L/C Loans in an amount, and replace all outstanding Cash Collateralize the Letters of Credit and/or Cash Collateralize in an amount equal to 102% of the amount, by which the Outstanding Amount of the Total Working Capital Exposure of the Working Capital Lenders exceeds the Working Capital Commitments or the Outstanding Amount of the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an Issuers exceeds the aggregate L/C Issuer Commitments, as applicable; provided that any amount equal to such excess; provided, however, that the Borrower shall not be required provided 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit under this clause shall be returned to Borrower to the extent that, after giving effect to such return, Borrower would remain in accordance compliance with Section 2.05(b)(vii)this clause and no Event of Default shall have occurred and be continuing.
(iii) In the event and on each occasion that If an Equity Sale or a Specified Equity Issuance Total Sale occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.04(c), on or prior to the date which is five (5) Business Days after the date of receipt by the Borrower of the Net Proceeds thereof, an aggregate principal amount of Term Loans in an amount equal to the applicable Prepayment Amount; provided that, the Borrower shall make such mandatory prepayments with the Net Proceeds thereof and, solely to the extent necessary, other cash of the Borrower in an amount equal (together with such Net Proceeds) to the applicable Prepayment Amount.
(iv) In If the event that Borrower incurs or issues any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from Indebtedness after the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party Closing Date (other than Indebtedness permitted not prohibited under Section 7.02 (excluding Indebtedness incurred pursuant to Section 8.02)clause (n) of the definition of “Permitted Debt”, which results in the receipt by the Borrower of Net Proceeds, the Borrower shallshall prepay in accordance with Section 2.04(c) an aggregate principal amount of Term Loans, substantially simultaneously together with (all Swap Termination Amounts then due and payable as a result of any such prepayment, in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to 100% of Net Proceeds received therefrom, on or prior to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit fifth (5th) Business Day following receipt thereof by the Borrower (except, for any Swap Termination Amounts, on the day set forth in accordance with Section 2.05(b)(vii2.04(c)).
(v) No later than If the earlier of Borrower receives any Net Proceeds resulting from any Disposition, Material Contract Payment or Casualty Event, the Borrower shall prepay in accordance with Section 2.04(c), on or prior to the date which is five (i5) 90 days Business Days after the end receipt by the Borrower of each fiscal year such Net Proceeds, an aggregate principal amount of Term Loans equal to the Borrowerapplicable Prepayment Amount with respect to such Disposition, commencing with the fiscal year ending on December 31, 2007Material Contract Payment or Casualty Event.
(vi) If any Transportation Agreement shall have been terminated, and such terminated Transportation Agreement is not replaced on substantially similar terms on or prior to the date that is six (ii6) months after such termination, the Borrower shall prepay in accordance with Section 2.04(c) an aggregate principal amount of Term Loans in an amount equal to one hundred percent (100%) of cash available at level Eighth of Section 2.16(i) on each Quarterly Payment Date following such six-month period until the date on which Debt Service Coverage Ratio shall equal or exceed 1.30:1.00.
(vii) If the financial statements Term Conversion Date has not occurred on or before the last Business Day of June 2022 or September 2022 as a result of an extension of the Date Certain (in accordance with respect to such period are delivered pursuant to Section 7.01(athe definition thereof), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.04(c)(i), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (amounts on deposit in or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) credited to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the Revenue Account, an aggregate principal amount of Term Loans so prepaid), subject in an amount equal to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving the Term Loans so prepaid), with that would have been payable on such date (as applicable) if no corresponding reduction such extension of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this AgreementDate Certain had occurred.
(viii) Mandatory prepayments Notwithstanding anything to the contrary in Sections 2.04(b)(iii), (b)(iv), (b)(v), (b)(vi) or (b)(vii), if at the time of outstanding Term Loans any such prepayment under this Agreement shall be applied pro rata against any such subsection the remaining scheduled installments Borrower is required to prepay or to offer to repurchase or make payment of principal due in any Additional Pari Passu Permitted Debt with the Net Proceeds received with respect of to any such subsection, then the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied Borrower may apply such Net Proceeds on a pro rata basis to the then outstanding Term Loans being prepaid irrespective and Additional Pari Passu Permitted Debt (determined with reference to the outstanding principal amount of whether each at such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory time, taking into account any Swap Termination Amounts resulting from such prepayment) and the amount of prepayment of the Term Loans as described belowshall be reduced by such amount applied to repay such Additional Pari Passu Permitted Debt; provided, thenfurther, with respect that, to the extent the holders of Additional Pari Passu Permitted Debt decline to have such mandatory prepaymentindebtedness repurchased or prepaid, the Borrower shall promptly (and in any event within five (5) Business Days following such rejection) apply such declined amount of such mandatory Net Proceeds to prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 2.04(c)(i).
Appears in 1 contract
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.[reserved]
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).[reserved]
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)[Reserved].
(iv) In If the event that any Loan Party Borrower or any Restricted Subsidiary of a Loan Party shall receive Net Cash Proceeds from incurs or issues any Indebtedness after the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party Closing Date (other than Indebtedness permitted pursuant to not prohibited under Section 8.027.03 (excluding Section 7.03(t))), the Borrower shall, substantially simultaneously shall cause to be offered to be prepaid in accordance with clause (and b)(vii) below an aggregate principal amount of Loans in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to 100% of all Net Proceeds received therefrom on or prior to the Required Prepayment Percentage date which is five Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Proceeds.
(v) No later [reserved].
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Loan Extension Request or any Incremental Amendment (which may be prepaid on a less than the earlier pro rata basis in accordance with their terms), each prepayment of Loans pursuant to clause (iv) of this Section 2.05(b) shall be applied, first, ratably to each Class of Loans then outstanding (provided that (i) 90 days after the end any prepayment of each fiscal year of the Borrower, commencing Loans with the fiscal year ending on December 31, 2007Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt, and (ii) the date on which the financial statements any Class of Incremental Loans, Extended Loans, or Refinancing Loans may specify that one or more other Classes of Loans and Incremental Loans may be prepaid prior to such Class of Incremental Loans, Extended Loans or Refinancing Loans; provided further, with respect to such period are delivered each Class of Loans, each prepayment pursuant to clause (iv) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 7.01(a)2.07(a) as directed by the Borrower, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)or, absent such direction, in an aggregate principal amount equal to the Required Prepayment Percentage direct order of Excess Cash Flow for the fiscal year then ended less the aggregate amount maturity of all Voluntary Prepayments during such fiscal yearinstallment).
(vivii) The Borrower shall deliver to notify the Administrative Agent, at the time Lender in writing of each any mandatory prepayment required under to be made pursuant to this Section 2.05(b), (i) at least four Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the reasonably detailed calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreementprepayment.
(viii) Mandatory [reserved]
(ix) With respect to each prepayment of Loans required pursuant to Section 2.05(b), the Lender will have the right to refuse such offer of prepayment. Any prepayment refused by the Lender may be retained by the Borrower.
(x) In connection with any mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against by the remaining scheduled installments of principal due in respect Borrower of the Tranche B Term Loans and Tranche C Term Loans pursuant to this Section 2.07. Such mandatory 2.05(b), such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans Class or Classes being so prepaid, first to Tranche B Term Loans that are Base Rate Loans . Notwithstanding anything to the full contrary in this Section 2.05(b), (i) mandatory prepayments in an aggregate amount not to exceed $100,000 in any one fiscal year shall not be required to the extent thereof before application that, if following such repayment, the Loan Party would have insufficient funds to Tranche B Term Loans that are Eurocurrency Rate Loans in make a manner that minimizes REIT Distribution and (ii) the amount of any payments required to mandatory prepayment shall furthermore be made by reduced if the Borrower pursuant to Section 3.05 and (B) determines in good faith that the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount payment of any payments required distribution is necessary either to be made by maintain the Borrower pursuant Borrower’s status as a real estate investment trust under the Code or to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by enable the Borrower to avoid payment of any Tax that could be used in accordance with avoided by reason of a distribution by the provisions of this AgreementBorrower; provided that such reduction shall not exceed the amount needed to make such distribution or maintain such status.
Appears in 1 contract
Mandatory. (i) In No later than the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on first Business Day following the date of such termination, repay receipt by the Borrower or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters any of Credit and/or its Subsidiaries of any Net Cash Collateralize the L/C Obligations Proceeds in a cash collateral account established with the Collateral Agent for the benefit excess of the Secured Parties $5,000,000 in the manner described in Section 2.03(gany 12 consecutive month period ("Excess Net Cash Proceeds"). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations Advances in an aggregate amount equal to such excess; providedExcess Net Cash Proceeds. Notwithstanding the foregoing, howeveras long as no Default shall have occurred and be continuing, that the Borrower shall not be required to Cash Collateralize the L/C Obligations make any mandatory prepayment pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.Subsection 2.04(b)
(iii) Not to the extent the Excess Net Cash Proceeds are reinvested in productive assets used by the Borrower and its Subsidiaries in the conduct of its business within 180 days from the date of receipt thereof. If upon receipt of any Excess Net Cash Proceeds, the Borrower elects to reinvest the Excess Net Cash Proceeds as permitted under this Subsection 2.04(b)(i), (1) no later than the fifth first Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of such Excess Net Cash Proceeds resulting therefromProceeds, the Borrower shall apply deliver an officers' certificate to the Required Prepayment Percentage Administrative Agent demonstrating the derivation of such Excess Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters and certifying the portion of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, such proceeds which the Borrower shall, substantially simultaneously with elects to reinvest in productive assets and certifying that no Default shall have occurred and be continuing and (and in any event not later than 2) upon the fifth Business Day next following) expiration of 180 days after the occurrence date of such Specified Equity Issuance and the receipt of the Excess Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02)certified as being scheduled for reinvestment, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a Agent an officers' certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of indicating the amount of Excess Net Cash Proceeds reinvested as of such prepayment date, the assets in which such Excess Net Cash Proceeds have been reinvested, and the amount of any remaining Excess Net Cash Proceeds which shall be applied to prepay the Advances as set forth in this Subsection 2.04(b)(i).
(ii) The Borrower shall prepay (A) all outstanding Advances, upon the termination of the Equipment Purchase Agreement as a result of a default thereunder by the Borrower and (B) all or a portion of the Advances which corresponds to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) any refund required to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (made by Ericsson in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction terms of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Equipment Purchase Agreement.
(viiiiii) Mandatory All prepayments of outstanding Term Loans under this Agreement Section 2.04(b) shall be made together with accrued interest to the date of such prepayment on the aggregate principal amount prepaid and shall be applied pro rata against between the remaining outstanding Series A Advances and Series B Advances and shall be applied to reduce the scheduled principal installments of principal such Advances due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective 2.03 hereof in inverse order of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementmaturity.
Appears in 1 contract
Sources: Credit Agreement (Powertel Inc /De/)
Mandatory. (i) Upon the occurrence of a Borrowing Base Deficiency, Tower shall, without demand by the Agent or the Banks, prepay so much of the Revolving Credit Loans (Tower) as shall equal the Borrowing Base Deficiency. Any such mandatory prepayment required under this Section 2.07(b)(i) shall be applied first to Tower's Alternate Base Rate Loans outstanding and then to Tower's Eurodollar Loans outstanding. In the event of any termination such mandatory prepayment of all of a Eurodollar Loan, such prepayment shall be held by the Agent as cash collateral for the Revolving Credit CommitmentsLoans (Tower), and shall earn interest at a rate then generally paid by the Borrower shallAgent on cash collateral accounts, and shall be applied to prepay the Eurodollar Loan on the date last day of such terminationLoan's Interest Period, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters upon an Event of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectDefault, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectif earlier.
(ii) Not later than Holdings shall make a mandatory payment of the fifth Business Day principal amount of the Revolving Credit Notes (Holdings) at the following times and in the completion following amounts:
(a) a prepayment in the principal amount of any Asset Sale and/or $4,000,000.00, or such lesser amount as is equal to the net proceeds of such Holdings Prepayment Event, on the day that the first Holdings Prepayment Event occurs; and
(b) if such first Holdings Prepayment Event does not later than result in a prepayment of $4,000,000.00, a prepayment in the tenth Business Day following principal amount equal to the occurrence difference between (x) $4,000,000.00 and (y) the prepayment made upon the first Holdings Prepayment Event, such prepayment to be made on the day that the second Holdings Prepayment Event occurs; and
(c) a prepayment in a principal amount equal to the lesser of any Recovery Event and(i) the outstanding principal amount of the Notes or (ii) the greater of (x) the amount of the Income Tax Refund or (y) $2,000,000.00, in each case, such prepayment to be due on the day of receipt of Net Cash Proceeds resulting therefrom, the Borrower Income Tax Refund. Any mandatory payment made pursuant to any provision of this clause (ii) shall apply be applied to the Required Prepayment Percentage payments required by clause (iii) in the inverse order of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)maturity.
(iii) In addition to the event and mandatory payments required by clause (ii) above, Holdings shall make monthly prepayments of principal, each in the principal amount of $100,000.00, beginning on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth last Business Day next followingof April, 1997 and continuing on the last Business Day of each month thereafter, until the Holdings Maturity Date, when the then outstanding principal amount of all Revolving Credit Loans (Holdings) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit shall be paid in accordance with Section 2.05(b)(vii)full.
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment Any mandatory payment required under this Section 2.05(b)2.07(b) shall be applied first to Holdings' Alternate Base Rate Loans outstanding and then to Holding's Eurodollar Loans outstanding. If there are no Revolving Credit Loans (Holdings) then outstanding, (i) any mandatory payment required under this Section 2.07 shall be applied first to Tower's Alternate Base Rate Loans outstanding and then to Tower's Eurodollar Loans outstanding. Any mandatory payment of 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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Eurodollar Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings made pursuant to this Section 2.05 2.07(b) shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions 2.07 of this Agreement.
(viiiv) Mandatory All mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against between the remaining scheduled installments of principal due Banks.
(vi) All Revolving Credit Loans (Holdings) shall be paid in respect full on the Holdings Maturity Date and all Revolving Credit Loans (Tower) shall be paid in full on the Tower Maturity Date."
(g) Section 5.01 of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments Agreement shall be applied on a pro rata basis to amended by adding the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied following new subsections (Ar) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.s):
Appears in 1 contract
Mandatory. (i) In If for any reason the event of Total Revolving Credit Outstandings at any termination of all of time exceed the Revolving Credit CommitmentsFacility at such time, the Borrower shall, on Borrowers shall immediately prepay the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Loans, Swing Line Loans and replace all outstanding Letters of Credit L/C Borrowings and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the (other than L/C Obligations Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than In addition to the fifth Business Day following required payments of principal of the completion Term Loan set forth in Section 2.07 and any optional or mandatory payments of any Asset Sale and/or not later than principal of the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance Term Loan and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Revolving Credit Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
effected under Sections 2.05(a) and (iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02b)(i), the Borrower shallBorrowers shall make the following required prepayments of the Term Loan and the Revolving Credit Loans, substantially simultaneously with each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders within the time period specified below:
(and in any event not later than the fifth Business Day next followingA) the receipt of such Net Cash Proceeds by such Loan Party Borrowers shall make, or such Subsidiarycause each applicable Subsidiary to make, apply a prepayment in an amount equal to one hundred percent (100%) of the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Property Sale by any Borrower or any Subsidiary, each such prepayment to be made immediately upon receipt of the Borrower, commencing with the fiscal year ending on December 31, 2007, Net Cash Proceeds thereof and upon not less than five (ii5) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver Business Days’ prior written notice to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) which notice shall include a certificate signed by of a Responsible Officer of the Borrowers setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such Property Sale and the amount of such prepayment;
(B) the Borrowers shall make, or cause each applicable Subsidiary to make, a prepayment in an amount equal to one hundred percent (100%) of the Net Cash Proceeds of each Debt Issuance, each such prepayment to be made immediately upon receipt of such proceeds and upon not less than five (5) Business Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of such Borrower setting forth in reasonable detail the calculation calculations utilized in computing the Net Cash Proceeds of such Debt Issuance and the amount of such prepayment;
(C) the Borrowers shall make, or cause each applicable Subsidiary to make, a prepayment in an amount equal to one hundred percent (100%) of the Net Cash Proceeds of each Equity Issuance, each such prepayment to be made immediately upon receipt of such proceeds and upon not less than five (ii5) to the extent practicable, at least 10 Business Days Days’ prior written notice to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of such prepayment (Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such Equity Issuance and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment;
(D) the Borrowers shall make, or cause each applicable Subsidiary to make, a prepayment shall be applied equal to one hundred percent (A100%) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaidall Extraordinary Receipts, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required each such prepayment to be made by the Borrower pursuant to Section 3.05 immediately upon receipt of such proceeds and upon not less than five (B5) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by Business Days’ prior written notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment dateAgent, to decline all which notice shall include a certificate of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount a Responsible Officer of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of Borrowers setting forth in reasonable detail the amount of such prepayment; and
(E) within five (5) Business Days after the financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall make, or cause each applicable Subsidiary to make, a prepayment that is re-offered equal to them, in which case the aggregate Excess Cash Flow Percentage multiplied by the amount of all Excess Cash Flow, which notice shall include a certificate of a Responsible Officer of the prepayment that would have been applied to prepay Borrowers setting forth in reasonable detail the amount of such Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementprepayment.
Appears in 1 contract
Mandatory. (i) In the event of any termination of all of the Revolving Credit CommitmentsIf, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In any Eurocurrency Rate Advances, any Lender notifies the event and on each occasion Administrative Agent that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after such Lender is unable to obtain matching deposits in the end London inter-bank market at or about 11:00 A.M. (London time) on the second Business Day before the making of each fiscal year a Borrowing denominated in Dollars or the third Business Day before the making of the Borrower, commencing with the fiscal year ending on December 31, 2007, and a Borrowing denominated in any Committed Currency in sufficient amounts to fund such Lender’s Revolving Credit Advances as a part of such Borrowing during its Interest Period or (ii) the date on which Eurocurrency Rate for any Interest Period for such Advances will not adequately reflect the financial statements with respect cost to such period are delivered pursuant to Section 7.01(a)Lender of making, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)funding or maintaining such Lender’s Eurocurrency Rate Advances for such Interest Period, in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly forthwith so notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid applicable Borrower and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05Lenders, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied whereupon (A) in such Borrower will, on the case last day of the applicable principal then existing Interest Period therefor, (1) if such Eurocurrency Rate Advances are denominated in Dollars, either (x) prepay such Advances or (y) Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate Advances are denominated in any Committed Currency, either (x) prepay such Advances or (y) redenominate such Advances into an Equivalent amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Dollars and Convert such Advances into Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 Advances and (B) in the case obligation of the applicable principal amount of the Tranche C Term Loans being so prepaidLenders to make, first or to Tranche C Term Loans that are Convert Revolving Credit Advances into, Eurocurrency Rate Loans with an Interest Period of one month to Advances shall be suspended until the full extent thereof before application to Tranche C Term Loans Administrative Agent shall notify the Company and the Lenders that the circumstances causing such suspension no longer exist; provided that, if the circumstances set forth in clause (ii) above are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes applicable, the amount of any payments required to be made by the applicable Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent and the Lenders, to continue such Advances in such Committed Currency for Interest Periods of not longer than one month, which Advances shall thereafter bear interest at a rate per annum equal to the Applicable Margin plus, for each Lender, the cost to such Lender (expressed as a rate per annum) of funding its Eurocurrency Rate Advances by facsimile at least eight whatever means it reasonably determines to be appropriate. Each such Lender shall certify its cost of funds for each Interest Period to the Administrative Agent and the applicable Borrower as soon as practicable (but in any event not later than ten Business Days prior to after the applicable first day of such Interest Period).
(ii) On the date on which the aggregate unpaid principal amount of Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment or prepayment dateor otherwise, to decline all less than $1,000,000, such Advances shall automatically (A) if such Eurocurrency Rate Advances are denominated in Dollars, Convert into Base Rate Advances and (B) if such Eurocurrency Rate Advances are denominated in a Committed Currency, be redenominated into an Equivalent amount of Dollars and Convert into a Base Rate Advance.
(iii) If any Borrower shall fail to select the duration of any prepayment Interest Period for any Eurocurrency Rate Advances in accordance with the provisions contained in the definition of its Term Loans pursuant to sub-paragraphs (ii)“Interest Period” in Section 1.01, the Administrative Agent will forthwith so notify such Borrower and the Lenders, whereupon each such Eurocurrency Rate Advance will automatically, on the last day of the then existing Interest Period therefor, (iii)A) if such Eurocurrency Rate Advances are denominated in Dollars, Convert into Base Rate Advances and (B) if such Eurocurrency Rate Advances are denominated in a Committed Currency, be redenominated into an Equivalent amount of Dollars and Convert into a Base Rate Advance.
(iv) or Upon the occurrence and during the continuance of any Event of Default and upon notice from the Administrative Agent to the Company, (vA) of this Sectionif any Eurocurrency Rate Advances are denominated in Dollars, such Eurocurrency Rate Advances shall be Converted into Base Rate Advances and (B) if any Eurocurrency Rate Advances are denominated in which case the aggregate any Committed Currency, such Eurocurrency Rate Advances shall be redenominated into an Equivalent amount of Dollars and be Converted into Base Rate Advances and (ii) the prepayment that would have been applied obligation of the Lenders to prepay such Term Loans but was so declined make, or to Convert Advances into, Eurocurrency Rate Advances shall be re-offered suspended; provided that the applicable Borrower may elect with respect to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage Eurocurrency Rate Advances which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In the event of such a re-offer, the relevant Lenders may electare denominated in any Committed Currency, by notice to the Administrative Agent by facsimile and the Lenders within two one Business Day of such notice, to continue such Advances in such Committed Currency, whereupon the Administrative Agent may require that such Eurocurrency Rate Advances shall bear interest at the Overnight Eurocurrency Rate for a period of three Business Days and thereafter, such Eurocurrency Rate Advances shall have Interest Periods of receiving notification a duration of not longer than one month. “Overnight Eurocurrency Rate” means the rate per annum applicable to an overnight period beginning on one Business Day and ending on the next Business Day equal to the sum of 1%, the Applicable Margin and the average, rounded upward to the nearest whole multiple of 1/16 of 1%, if such re-offeraverage is not such a multiple, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained respective rates per annum quoted by the Borrower Administrative Agent on request as the rate at which it is offering overnight deposits in the relevant currency in amounts substantially equal to be used in accordance with the provisions of this AgreementBNP Paribas’ Eurocurrency Rate Advances.
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Sources: Credit Agreement (International Rectifier Corp /De/)
Mandatory. (i) In The Borrower shall, on each date the event Revolving Credit Commitments are reduced pursuant to Section 2.11, prepay the Swingline Loans, 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 Swingline Loans, Revolving Loans, and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ii) If, at any termination time prior to the Unencumbered Conversion Date, the sum of the unpaid principal balance of the Term Loans, the Incremental Term Loans (if any), Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the Availability as determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall within three (3) Business Days and without notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Swingline Loans and Revolving Loans until paid in full, then to the Term Loans and the Incremental Term Loans (if any) on a combined ratable basis with respect to all such Loans until such Loans are paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Guaranteed Obligations owing with respect to the Letters of Credit.
(iii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to any outstanding Loans under the Revolving Facility, but without a reduction of the Revolving Credit Commitments, until payment in full thereof with any balance applied ratably to the Borrower shall, on outstanding Loans under the date Term Loan Facilities. Each prepayment of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters under this Section 2.8(b) shall be made by the payment of Credit and/or Cash Collateralize the principal amount to be prepaid. Each cash collateralization of L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit made in accordance with Section 2.05(b)(vii)9.4.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. Until such time as the Outstanding Amount has been repaid in full, the Outstanding Amount shall be permanently prepaid in the amounts set forth below upon the occurrence of any of the following events:
(i) In the event of any termination Debt Issuance by the Borrower or any of all its Restricted Subsidiaries on or after the Closing Date, then concurrently with receipt of the Revolving Credit CommitmentsNet Cash Proceeds of such Debt Issuance, the Borrower shallshall prepay an aggregate principal amount of the Term Loans and, on if so provided in the date Incremental Term Supplement applicable thereto, Incremental Term Loans equal to 100% of such terminationNet Cash Proceeds.
(ii) If Net Cash Proceeds of Extraordinary Receipts received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries exceed during any calendar year an amount equal to $50,000,000 (the portion of such Net Cash Proceeds that exceeds $50,000,000 is herein referred to as “Excess Extraordinary Receipts”) the Borrower shall prepay an aggregate principal amount of Term Loans and, repay if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower or such Restricted Subsidiary; provided, however, that, for so long as no Event of Default shall have occurred and be continuing, the Borrower or a Restricted Subsidiary may reinvest such Extraordinary Receipts in assets used in the businesses of the Borrower or its Restricted Subsidiaries, and in such case any such Extraordinary Receipts that have not been reinvested within one year from the receipt thereof by the Borrower or such Restricted Subsidiary shall be immediately applied to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans.
(iii) If Net Cash Proceeds received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries from one or more Dispositions (other than Dispositions to the Borrower or to a Restricted Subsidiary permitted by Section 7.05(b)(ii)) exceed during any calendar year, an aggregate amount equal to $50,000,000 (the portion of such Net Cash Proceeds that exceeds $50,000,000 is herein referred to as “Excess Disposition Net Cash Proceeds”) the Borrower shall make an offer to the Lenders to prepay all outstanding Revolving Credit an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to such Excess Disposition Net Cash Proceeds pursuant to Section 2.03(c) and, to the extent such offer is declined, the Borrower may retain such declined amounts, provided, however, for so long as no Event of Default shall have occurred and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or be continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Collateralize the L/C Obligations Proceeds (other than Net Cash Proceeds in a cash collateral account established connection with the Collateral Agent for Disposition of a Refinery) in assets used in the benefit business of the Secured Parties Borrower or its Subsidiaries, and in the manner described in Section 2.03(g). If for case of any reason Excess Disposition Net Cash Proceeds that have not been reinvested within one year from the Total Outstandings at any time exceed receipt thereof by the Total Revolving Credit Commitments then in effectBorrower or such Subsidiary, the Borrower shall immediately upon the expiration of such one-year period, make an offer to the Lenders to prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Excess Disposition Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto pursuant to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.03(c).
(iv) In the event that any Loan Party or any Subsidiary Upon a Disposition of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next followingA) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with El Paso Refinery as permitted under Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a7.05(c)(i), the Borrower shall prepay outstanding the Term Loans and/or Cash Collateralize Letters of Credit and, if so provided in accordance with the Incremental Term Supplement applicable thereto, Incremental Term Loans, in full, and (B) the Gallup Refinery as permitted under Section 2.05(b)(vii7.05(c)(ii), in the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of the Required Prepayment Percentage Net Cash Proceeds (which amount shall be in compliance with clause (B) of Excess Cash Flow for Section 7.05(c)(ii)) received by the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during Borrower or such fiscal year.
(vi) The Borrower shall deliver to the Administrative AgentRestricted Subsidiary; provided in each case, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Permitted First Priority Refinancing Debt (or any Permitted Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of each prepayment the documentation governing such Indebtedness with the Net Cash Proceeds of such transaction or event (such Indebtedness required under this Section 2.05(bto be offered to be so repurchased, “Other Applicable Indebtedness”), (i) a certificate signed by a Responsible Officer of then the Borrower setting forth in reasonable detail the calculation of the amount of may apply such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and, if so provided in the Incremental Term Loan Supplement applicable thereto, Incremental Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans and, if so provided in the Incremental Term Loan Supplement applicable thereto, Incremental Term Loans in accordance with the respective outstanding principal amounts thereof) terms hereof to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described belowand, thenif applicable, with respect to such mandatory prepaymentthe Incremental Term Loans, and the amount of such mandatory prepayment of the Term Loans and, if applicable, the Incremental Term Loans, that would have otherwise been required pursuant to this Section 2.03(b) shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 reduced accordingly and (B) in to the case extent the holders of the applicable principal amount of the Tranche C Term Loans being so Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period declined amount shall promptly (and in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight event within ten (10) Business Days prior to after the applicable prepayment date, to decline all date of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (ivsuch rejection) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been be applied to prepay such the Term Loans but was and, if so declined shall be re-offered to those provided in the Incremental Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Supplement applicable thereto, Incremental Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementterms hereof.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) In Within ten (10) Business Days after financial statements are required to have been delivered pursuant to Section 6.01(a) (commencing with the event fiscal year ending December 31, 2021), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements, minus, without duplication of any termination amount deducted from Consolidated Net Income in calculating Excess Cash Flow for such Excess Cash Flow Period, (B) the sum (except to the extent such voluntary prepayments are funded with the proceeds of long term Indebtedness (other than revolving loans or intercompany Indebtedness)) of (1) all voluntary prepayments of Term Loans made during such Excess Cash Flow Period, in an amount equal to the 95
(ii) If (1) the Lead Borrower or any Restricted Subsidiary of the Lead Borrower 96
(iii) If the Lead Borrower or any Restricted Subsidiary of the Lead Borrower incurs or issues any Indebtedness after the Third Amendment Effective Date (A) not permitted to be incurred or issued pursuant to Section 7.03 or (B) that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans (or, in the case of Indebtedness constituting Credit Agreement Refinancing Indebtedness, the applicable Class of Term Loans) in an amount equal to 100% of all Net Proceeds, if any, received therefrom on or prior to the date which is three (3) Business Days after the receipt by the Lead Borrower or such Restricted Subsidiary of such Net Proceeds. In connection with any prepayment under Section 2.05(b)(iii)(B) that is consummated in respect of all or any portion of the Revolving Credit CommitmentsInitial Term Loans prior to the date that is two years after the Third Amendment Effective Date, the Borrower shall, on Borrowers shall pay to the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in Term Lenders a cash collateral account established with the Collateral Agent for the benefit fee equal to 1.00% of the Secured Parties in aggregate principal amount of the manner described in Section 2.03(g). Initial Term Loans subject to such prepayment.
(iv) If for any reason the Total Outstandings aggregate Outstanding Amount of Revolving Credit Loans at any time exceed exceeds the Total aggregate Revolving Credit Commitments then in effect, the Borrower Borrowers shall immediately promptly, following the earlier of written notice from the Administrative Agent and knowledge of the Lead Borrower, prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(iiv) Not later than Notwithstanding any other provisions of this Section 2.05, (i) to the fifth Business Day following extent that the completion repatriation to the United States of any Asset Sale and/or Excess Cash Flow attributable to Foreign Subsidiaries (“Foreign Subsidiary Excess Cash Flow”) would be (x) prohibited or delayed by applicable Law or (y) restricted, prohibited or delayed by applicable material constituent documents or material agreements so long as such restrictions described in this clause (y) are not later than the tenth Business Day following the occurrence of any Recovery Event and, created in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage contemplation of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occursprepayments, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage portion of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Foreign Subsidiary Excess Cash Flow for that would be so affected were the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during Borrowers to attempt to repatriate such fiscal year.
(vi) The Borrower shall deliver cash will not be required to the Administrative Agent, be applied to repay Term Loans at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth times provided in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall if the applicable local law or applicable material constituent documents or material agreements would not otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) permit repatriation to the full extent thereof United States (and the corresponding accrued and unpaid interest and fees on Lead Borrower hereby agrees to use commercially reasonable efforts during the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.year 97
Appears in 1 contract
Sources: Credit Agreement (Redwire Corp)
Mandatory. (i) In Within ten Business Days following each date on which the event Borrower and/or any of its Restricted Subsidiaries receives any proceeds from (x) any incurrence of Indebtedness (excluding any Indebtedness permitted to be incurred pursuant to Section 7.01) or (y) the issuance of any termination of all of Disqualified Equity Interests, in each case, after the Revolving Credit CommitmentsThird Amendment and Restatement Effective Date, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full 100% of the Revolving Loans and Swing Line Loans Net Cash Proceeds therefrom in accordance with the Total Outstandings exceed the Total Revolving Credit Commitments then in effectrequirements of Section 2.08(b)(iv).
(ii) Not later than Within ten Business Days following each date on which the fifth Business Day following Borrower and/or any of its Restricted Subsidiaries receives Net Cash Proceeds (A) from a disposition of any property or assets in an Asset Sale occurring after the Third Amendment and Restatement Effective Date or (B) with respect to any Casualty Event occurring after the Third Amendment and Restatement Effective Date, an amount equal to 100% of the Net Cash Proceeds therefrom shall be applied as a mandatory repayment in accordance with the requirements of Section 2.08(b)(iv); provided that the Net Cash Proceeds from any SNF Sale shall not be deemed received until the earlier of (x) public announcement by the Borrower of the completion of any Asset Sale and/or not later than the tenth Business Day following sale of the occurrence entire skilled nursing facility business of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)and its Consolidated Subsidiaries and (y) October 31, 2018.
(iii) In Within 15 days after financial statements have been delivered pursuant to Section 5.01(a) (commencing with Fiscal Year ending December 31, 2014) and the event and on each occasion that a Specified Equity Issuance occursrelated compliance certificate has been delivered pursuant to Section 5.01(c), the Borrower shall, substantially simultaneously with shall cause to be prepaid Loans equal to (and in any event not later than the fifth Business Day next followingA) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Applicable ECF Percentage of Excess Cash Flow, if any, for the Fiscal Year covered by such Net Cash Proceeds therefrom financial statements minus (B) the aggregate principal amount of all voluntary prepayments of Loans and ABL Loans (in the case of the ABL Loans, only to prepay outstanding Loans and/or Cash Collateralize Letters the extent accompanied by a corresponding permanent reduction to the “Commitments” as defined in the ABL Facility) during such period, in each case to the extent such prepayments are not funded with proceeds of Credit Indebtedness, shall be applied as a mandatory repayment in accordance with the requirements of Section 2.05(b)(vii2.08(b)(iv).
(iv) In Subject to Section 2.08(b)(v), each prepayment of Loans pursuant to this Section 2.08(b) shall be applied pro rata among the event that Loans. Each prepayment of any Loan Party or any Subsidiary tranche of Loans pursuant to Section 2.08(b) shall be applied to such tranche first, to accrued interest and fees due on the amount of the prepayment of such Loans; second, to the scheduled installments thereof occurring within the immediately succeeding eight fiscal quarters in the direct order of maturity thereof; and third, to the applicable remaining installments due pursuant to Section 2.07 on a Loan Party shall receive pro rata basis, in each case, to be allocated among the appropriate Lenders in accordance with such Lenders’ respective Pro Rata Share. Notwithstanding the foregoing, with respect to the Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party an event described in Section 2.08(b) (other than Indebtedness permitted pursuant to Section 8.02ii), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage may use a portion of such Net Cash Proceeds to prepay or repurchase Permitted Pari Passu Notes or Junior Lien Indebtedness or Permitted Pari Passu Term Loan Indebtedness with a Lien on the Collateral ranking pari passu with the Lien securing the Secured Obligations to the extent any Permitted Pari Passu Notes or Junior Lien Indebtedness or Permitted Pari Passu Term Loan Indebtedness requires the issuer or borrower thereof to prepay or make an offer to purchase such Permitted Pari Passu Notes or Junior Lien Indebtedness or Permitted Pari Passu Term Loan Indebtedness with the proceeds of such event described Section 2.08(b)(ii), in each case in amount not to exceed the product of (x) the amount of Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding Loans principal amount of Permitted Pari Passu Notes or Junior Lien Indebtedness or Permitted Pari Passu Term Loan Indebtedness with a Lien on the Collateral ranking pari passu with the Liens securing the Secured Obligations and with respect to which such a requirement to prepay or make an offer to purchase exists and the denominator of which is the sum of the outstanding principal amount of such Permitted Pari Passu Notes or Junior Lien Indebtedness and/or Cash Collateralize Letters Permitted Pari Passu Term Loan Indebtedness and the outstanding principal amount of Credit in accordance with Section 2.05(b)(vii)Term Loans.
(v) No later than The Borrower shall notify the earlier Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clause (i) 90 days after the end of each fiscal year of the Borroweri)(y), commencing with the fiscal year ending on December 31, 2007, and (ii) or (iii) of this this Section 2.08(b) at least three (3) Business Days prior to the date on which of such prepayment. Each such notice shall specify the financial statements with respect to date of such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) and provide a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Lender’s Pro Rata Share of the prepayment. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (i)(y), (ii) to the extent practicable, at least 10 Business Days prior or (iii) of this Section 2.08(b) by providing written notice of such prepayment (and each, a “Rejection Notice”) to the Administrative Agent shall promptly notify each and the Borrower no later than 5:00 p.m. (New York time) one Business Day after the date of such Lender)’s receipt of notice from the Administrative Agent regarding such prepayment. Each notice of prepayment Rejection Notice from a given Lender shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) the mandatory prepayment of Term Loans to be prepaidrejected by such Lender. All prepayments 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 Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding the Term Loans on a pro rata basis (to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Subject to any requirements of any other Indebtedness, any Declined Proceeds remaining after offering such Declined Proceeds to Lenders in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined terms hereof may be retained by the Borrower to be used in accordance with the provisions of this AgreementBorrower.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Kindred Healthcare, Inc)
Mandatory. (i) In Within ten (10) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the event related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of any termination Loans equal to the excess (if any) of all (A) 35% of Excess Cash Flow for the fiscal year covered by such financial statements over (B) the aggregate principal amount of the Revolving Credit Term A Loan or, to the extent accompanied by a permanent reduction in the Aggregate Commitments, the Borrower shallCommitted Loans prepaid pursuant to Section 2.05(a)(i) during the fiscal year covered by such financial statements. Each prepayment made pursuant to this clause (i) shall be applied first to the Term A Loan until the Term A Loan is paid and satisfied in full (with such prepayments to be applied to the principal repayment installments of the Term A Loan in inverse order of maturity) and second to the Total Revolving Outstandings without reduction of the Aggregate Commitments (with such prepayments to be applied first, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize ratably to the L/C Obligations Borrowings and the Swing Line Loans until the L/C Borrowings and the Swing Line Loans are reduced to zero and second, ratably to the Committed Loans until the Committed Loans are repaid in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(gfull). .
(ii) If for any reason the Total Revolving Outstandings at any time exceed the Total Revolving Credit Aggregate Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Committed Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iclause (c) unless after the prepayment in full of the Revolving Loans and Swing Line Loans Loans, the Total Revolving Outstandings exceed the Total Revolving Credit Aggregate Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. At any time prior to the Conversion Date, if (i) In the event Borrower issues any senior unsecured notes or other debt securities pursuant to the Fee Letter or otherwise or (ii) the Borrower (or any direct or indirect parent company of Borrower) makes any public Equity Offering or offering of Disqualified Stock, 100% of the cash proceeds of any termination such issuance, Equity Offering or offering of all Disqualified Stock (net of any fees or expenses related thereto) shall be used to prepay the outstanding principal amount of the Revolving Credit CommitmentsLoans, the Borrower shallplus accrued and unpaid interest, in each case on or prior to the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize that is one Business Day after the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit receipt of the Secured Parties in the manner described in Section 2.03(g)applicable cash proceeds. If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Each prepayment of Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.05(b) unless after shall be paid to the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit Lenders in accordance with Section 2.05(b)(vii).
(iii) In their respective Pro Rata Shares; provided that in the event and on each occasion that a Specified Equity Issuance occurs, any Initial Lender (or an Affiliate thereof) purchases debt securities from the Borrower shall, substantially simultaneously with pursuant to a Securities Demand Proposal under (and in any event not later than the fifth Business Day next followingas defined in) the occurrence of Fee Letter at an issue price above the level at which such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of Initial Lender (or its Affiliate) has reasonably determined such Net Cash Proceeds therefrom debt securities can be resold to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, bona fide third party at the time of each prepayment required under this Section 2.05(b), such purchase (i) a certificate signed by a Responsible Officer of and notifies the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lenderthereof). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained net cash proceeds received by the Borrower in respect of such debt securities may, at the option of such Initial Lender, be applied first to be used in accordance with repay the provisions Loans of this Agreement.
such Initial Lender (viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall provided that if there is more than one such Initial Lender, then such net cash proceeds will be applied pro rata against to repay the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Initial Lenders who have initially accepted in proportion to such prepayment). In the event of such a re-offer, the relevant Lenders may elect, by notice to the Administrative Agent by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the Initial Lenders’ (or Affiliate’s) principal amount of such prepayment that is re-offered debt securities purchased from the Borrower) prior to them, in which case the aggregate amount of the prepayment that would have been being applied to prepay such Term the Loans pursuant to such re-offer but was so declined may be retained held by the Borrower to be used in accordance with the provisions of this Agreementother Lenders.
Appears in 1 contract
Sources: Credit Agreement (WP Prism Inc.)
Mandatory. (i) In If the event Borrower and its Subsidiaries shall have received Net Cash Proceeds in excess of $10,000,000 from (A) the sale, lease, transfer or other disposition of any termination of all assets of the Revolving Credit CommitmentsBorrower (other than any sale, lease, transfer or other disposition of assets (1) in the ordinary course of business or (2) to the extent that the Net Cash Proceeds thereof are reinvested in similar assets within six months after the receipt of such Net Cash Proceeds), (B) the incurrence of or issuance by the Borrower shallor any of its Subsidiaries of any indebtedness for borrowed money, on including indebtedness evidenced by notes, bonds, debentures or other similar instruments or (C) the date sale or issuance by the Borrower of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters any of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectits equity interests, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize be required to make a mandatory prepayment of Advances comprising a part of the L/C Obligations same Borrowings in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be Net Cash Proceeds. Any mandatory prepayment of Advances required to Cash Collateralize the L/C Obligations be made pursuant to this Section 2.05(b)(i2.09(b) unless shall be made on the earlier of (1) the last day of the Interest Period for any Advance ending after the prepayment in full date of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of (until all such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be have been prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v2) of this Section shall be applied: firstthe 30th calendar day after the receipt thereof; provided, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)that, subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement Net Cash Proceeds shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay Advances not later than the 30th calendar day after the date that such Term Loans but was so declined Net Cash Proceeds exceed $10,000,000.
(ii) Each prepayment made pursuant to this Section 2.09(b) shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In the event of such a re-offer, the relevant Lenders may elect, by notice together with any interest accrued to the Administrative Agent by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the amount date of such prepayment that is re-offered to themon the principal amounts prepaid and, in the case of any prepayment of a Eurodollar Rate Advance on a date other than the last day of an Interest Period or at its maturity, any additional amounts which case the aggregate amount of Borrower shall be obligated to reimburse to the prepayment that would have been applied to prepay such Term Loans Lenders in respect thereof pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 8.04(c).
Appears in 1 contract
Sources: Credit Agreement (Tc Pipelines Lp)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, If the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Subsidiary shall at any time exceed 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 Total Revolving Credit Commitments then Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in effectrespect thereof) and, promptly upon receipt by the Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such excessNet Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, howeverthis 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 $500,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if the Borrower states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within ninety (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 Cash Collateralize the L/C Obligations pursuant to make a mandatory prepayment under this Section 2.05(b)(i) unless after the prepayment subsection in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage 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 the Administrative Agent 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 first to the outstanding Term Loans and/or Cash Collateralize Letters until paid in full and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in accordance with Section 2.05(b)(vii)the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(vii) No later If after the Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(e) hereof, the earlier Borrower shall promptly notify the Administrative Agent 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 Loans until paid in full and then to the Revolving Credit. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 hereof or any other terms of the Loan Documents.
(iiii) 90 Within two (2) days after receipt of the Borrower’s year-end audited financial statements, and in any event within ninety (90) days after the end of each fiscal year of the Borrower, Borrower (commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a2008), the Borrower shall prepay the Obligations by an amount equal to fifty percent (50%) of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower. The amount of each such prepayment shall be applied first to the outstanding Term Loans and/or Cash Collateralize Letters until paid in full and then to the Revolving Credit.
(iv) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans (either prepayment of Term Loans or Revolving Loans, as applicable) under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.9(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans or Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year9.4 hereof.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Aggregate Commitments then in effectat such time, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(ii) Upon the occurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all net cash proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary.
(iii) If the Borrower or any of its Subsidiaries receives any condemnation proceeds or insurance proceeds (other than business interruption insurance proceeds) on account of any Collateral Loss in excess of $2,000,000, then the Borrower shall, promptly upon receipt thereof, apply (or cause the applicable Subsidiary to apply) such proceeds first, as a mandatory prepayment of the then outstanding Revolving Credit Loans, second, if an Event of Default is continuing, to Cash Collateralize the then Outstanding Amount of all L/C Obligations in an amount equal to 100% of the amount thereof, and third, any remaining amounts may be retained by the Borrower or the applicable Subsidiary; provided, however, that if no Event of Default is continuing, the Borrower shall not be required to Cash Collateralize or the L/C Obligations pursuant to this Section 2.05(b)(i) unless applicable Subsidiary may, at its election, within 12 months after the receipt of such proceeds, replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received; and provided, further, that any cash proceeds not so applied within such 12 month period shall be immediately applied to the prepayment in full of the Revolving Credit Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments (if any are then outstanding) as set forth in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with this Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(iii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party Any mandatory prepayments hereunder shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds be accompanied by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending all accrued interest on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; together with any remaining additional amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. (i) In the event of On any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in that a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties Borrowing Base Deficiency exists as stated in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted Borrowing Base Certificate delivered pursuant to Section 8.025.2(e) or as notified to the Borrower by the Administrative Agent (with such calculation set forth in reasonable detail which shall be conclusive absent manifest error), the Borrower shall, substantially simultaneously within one Business Day, to the extent of such deficiency, first prepay to the Swing Line Lender the outstanding principal amount of the Swing Line Advances, second prepay to the Lenders on a pro rata basis the outstanding principal amount of the Revolving Advances, and third make deposits with the Administrative Agent into the Cash Collateral Account to provide Cash Collateral in the amount of such excess for the Letter of Credit Exposure.
(and in ii) If the Borrower or any event Subsidiary receives Debt Incurrence Proceeds other than those resulting from Permitted Debt, then not later than the fifth one Business Day next following) following the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)proceeds, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), the Term Advances in an aggregate principal amount equal to the Required Prepayment Percentage 100% of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal yearDebt Incurrence Proceeds.
(viiii) The If the Borrower or any Subsidiary receives Equity Issuance Proceeds or capital contributions (other than contributions by Borrower to the capital of any Subsidiary), then not later than one Business Day following the receipt of such proceeds, the Borrower shall deliver prepay the Term Advances in an amount equal to 50% of such Equity Issuance Proceeds or contributions; provided that, (A) if no Default exists or would arise therefrom, then such Equity Issuance Proceeds or contributions shall not be required to be so applied on such date to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) extent that Borrower shall have delivered a certificate signed by a Responsible Officer of the Borrower setting to the Administrative Agent on or prior to such date stating that such Equity Issuance Proceeds or contributions are reasonably expected to be used to fund Acquisitions or reinvested in fixed assets in a manner permitted under this Agreement within 90 days following the date the Borrower or such Subsidiary received such Equity Issuance Proceeds or contributions (which officer’s certificate shall set forth the estimates of the amounts to be so expended); and (B) if all or any portion of such Equity Issuance Proceeds or contributions are not reinvested within such 90-day period as provided in reasonable detail clause (A) above, then 50% of such unused portion shall be applied on the calculation last day of such period as a mandatory prepayment of the Term Advances.
(iv) If the Borrower or any Subsidiary completes an Asset Sale which is not a Permitted Asset Sale, then the Borrower shall, no later than one Business Day following the completion such Asset Sale, prepay the Term Advances in an amount equal to 100% of the Net Cash Proceeds generated from such Asset Sale.
(v) If the Borrower or any Subsidiary completes an Asset Sale which is a Permitted Asset Sale, then the Borrower shall, no later than one Business Day following the completion such Asset Sale, prepay the Term Advances in an amount equal to 100% of the Net Cash Proceeds generated from such Asset Sale; provided that, (A) if no Default exists or would arise therefrom, then such Net Cash Proceeds shall not be required to be so applied on such date to the extent that Borrower shall have delivered a certificate by a Responsible Officer of the Borrower to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are reasonably expected to be reinvested in a manner permitted under this Agreement in fixed assets that become Collateral within 180 days following the date of such Asset Sale (which officer’s certificate shall set forth the estimates of the proceeds to be so expended); and (B) if all or any portion of such Net Cash Proceeds are not reinvested within such 180-day period as provided in clause (A) above, then 100% of such unused portion shall be applied on the last day of such period as a mandatory prepayment of the Term Advances.
(vi) If the Borrower or any Subsidiary receives any Extraordinary Receipts (whether from a single event or related series of events and whether as one payment or a series of payments), then the Borrower shall, no later than three Business Days following the receipt of such Extraordinary Receipts, prepay the Term Advances in an amount equal to 100% of the amount of such prepayment and Extraordinary Receipts; provided that, (iiA) if no Default exists or would arise therefrom, then such Extraordinary Receipts shall not be required to be so applied on such date to the extent practicable, at least 10 Business Days prior written notice that Borrower shall have delivered a certificate by a Responsible Officer of such prepayment (and the Borrower to the Administrative Agent on or prior to such date stating that such Extraordinary Receipts are reasonably expected to be reinvested in fixed or capital assets of any Credit Party within 180 days following the date the Borrower or such Subsidiary received such Extraordinary Receipts (which officer’s certificate shall promptly notify each Lenderset forth the estimates of the amounts to be so expended). Each notice ; (B) if all or any portion of such Extraordinary Receipts are not reinvested within such 180-day period as provided in clause (A) above, then 100% of such unused portion shall be applied on the last day of such period as a mandatory prepayment shall specify of the prepayment dateTerm Advances; and (C) if an Event of Default exists and such Extraordinary Receipts are insurance proceeds, the Class and Type of each Loan being prepaid and Borrower shall turn such proceeds over to the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Administrative Agent in accordance with Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty5.3(d).
(vii) Mandatory prepayments If an increase in the aggregate Revolving Commitments is effected as permitted under sub-paragraphs (ii)Section 2.15, (iii), (iv) and (v) the Borrower shall prepay any Revolving Advances outstanding on the date such increase is effected to the extent necessary to keep the outstanding Revolving Advances ratable to reflect the revised Revolving Pro Rata Shares of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (the Revolving Lenders arising from such increase. Any prepayment made by Borrower in accordance with this clause (vii) may be made with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount proceeds of Revolving Loans so prepaid), with no corresponding reduction of Advances made by all the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all Lenders in connection with such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance increase occurring simultaneously with the provisions of this Agreementprepayment.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Steel Excel Inc.)
Mandatory. (i) In Promptly upon receipt by the event Borrower or any of any termination its Subsidiaries of:
(A) the Net Cash Proceeds received from the sale of all the Miami Property, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the Revolving Credit CommitmentsFacility and thereafter to the Term A Loans; or
(B) the Net Cash Proceeds received from the Disposition of any assets (including without limitation, real property assets other than the Miami Property) other than Excluded Assets and Reinvestment Assets, 100% of such Net Cash Proceeds shall be applied by the Borrower shall, on to prepay the date of such termination, repay or prepay all outstanding Term A Loans and thereafter to the Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize Facility. Notwithstanding the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for foregoing, if any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be prepayment required to Cash Collateralize the L/C Obligations pursuant to under this Section 2.05(b)(i) unless after would require the Borrower to prepay Revolving Credit Loans on other than the last day of an Interest Period and such prepayment would require the Borrower to compensate the Lenders under Section 3.05 by reason of such prepayment, then the Borrower may delay making the prepayment in full until the last day of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectapplicable Interest Period.
(ii) Not later than the fifth Within five (5) Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days Days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are have been delivered pursuant to Section 7.01(a6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), if the Consolidated Total Leverage Ratio as set forth on such Compliance Certificate is greater than 4.0 to 1.0, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount of Loans in an amount equal to the Required Prepayment Percentage 50% of Excess Cash Flow for the fiscal year then ended covered by such financial statements (such prepayment to be applied as set forth below).
(iii) On the date specified in Section 2.06(b)(i)(B), the Borrower shall prepay an amount sufficient to cause the Total Revolving Credit Outstandings to be less than or equal to the Revolving Credit Facility as reduced in accordance therewith.
(iv) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than Excluded Issuances and any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of Loans equal to 75% of all Voluntary Prepayments during Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such fiscal yearSubsidiary (such prepayments to be applied as set forth below).
(v) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth below).
(vi) The Borrower shall deliver Prepayments of the Revolving Credit Facility made pursuant to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (i) a certificate signed without any further action by a Responsible Officer of or notice to or from the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (iior any other Loan Party) to reimburse the extent practicableL/C Issuer or the Revolving Credit Lenders, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penaltyas applicable.
(vii) Mandatory prepayments under sub-paragraphs (iiEach prepayment of Loans pursuant to Section 2.05(b)(ii), (iiiSection 2.05(b)(iv), Section 2.05(b)(v) or Section 7.03(vi) shall be applied, first, to the Term A Facility and, second, to the Revolving Credit Facility in the manner set forth in clause (iv) and (vvi) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid2.05(b), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viiij) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect Section 2.06(b) of the Tranche B Term Loans Credit Agreement is hereby amended and Tranche C Term Loans pursuant restated to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans read in its entirety as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.follows:
Appears in 1 contract
Sources: Credit Agreement (McClatchy Co)
Mandatory. (iA) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on On the date of the Term Loan A Borrowing, after giving effect to such terminationTerm Loan A Borrowing, repay and from time to time thereafter upon each repayment or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit prepayment of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectTerm Loan A Advances, the Borrower aggregate Term Loan A Commitments of the Term Loan A Lenders shall immediately prepay all outstanding Revolving Credit Loans be automatically and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in permanently reduced, on a pro rata basis, by an aggregate amount equal to the amount by which the aggregate Term Loan A Commitments immediately prior to such excessreduction exceed the aggregate unpaid principal amount of the Term Loan A Advances then outstanding; provided, however, that the Borrower Term Loan A Commitments shall not terminate, and all Term Loan A Advances made thereunder shall be required to Cash Collateralize repaid in full, no later than the L/C Obligations pursuant to this Section 2.05(b)(iTerm Loan A Termination Date.
(B) unless after On the prepayment in full date of the Revolving Loans Term Loan B Borrowing, after giving effect to such Term Loan B Borrowing, and Swing Line Loans from time to time thereafter upon each repayment or prepayment of the Total Outstandings Term Loan B Advances, the aggregate Term Loan B Commitments of the Term Loan B Lenders shall be automatically and permanently reduced, on a pro rata basis, by an amount equal to the amount by which the aggregate Term Loan B Commitments immediately prior to such reduction exceed the Total Revolving Credit aggregate unpaid principal amount of the Term Loan B Advances then outstanding; provided, however, that the Term Loan B Commitments shall terminate, and all Term Loan B Advances made thereunder shall be repaid in full, no later than the Term Loan B Termination Date.
(C) On the date of the Term Loan C Borrowing, after giving effect to such Term Loan C Borrowing, and from time to time thereafter upon each repayment or prepayment of the Term Loan C Advances, the aggregate Term Loan C Commitments of the Term Loan C Lenders shall be automatically and permanently reduced, on a pro rata basis, by an amount equal to the amount by which the aggregate Term Loan C Commitments immediately prior to such reduction exceed the aggregate unpaid principal amount of the Term Loan C Advances then outstanding; provided, however, that the Term Loan C Commitments shall terminate, and all Term Loan C Advances made thereunder shall be repaid in effectfull, no later than the Term Loan C Termination Date.
(ii) Not later than On and after the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, date that all Term Loan Advances shall have been repaid in each casefull, the receipt of Net Cash Proceeds resulting therefrom, the Borrower Revolving Credit Facility shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event be automatically and permanently reduced on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments is required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid2.06(b)(i), first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Sectionin an amount equal to the applicable Reduction Amount, in which case the aggregate amount provided that each such reduction of the prepayment that would have been applied to prepay such Term Loans but was so declined Revolving Credit Facility shall be re-offered to those Term Loan made ratably among the Revolving Credit Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with their Revolving Credit Commitments."
(a) Section 2.06 (Prepayments and Repayments) of the provisions of this Agreement.Credit Agreement is hereby amended by deleting subsection (c) thereof in its entirety and substituting the following therefor:
Appears in 1 contract
Sources: Credit Agreement (Applied Graphics Technologies Inc)
Mandatory. (i) In Subject to Section 2.05(b)(ix), within five (5) Business Days after financial statements are required to have been delivered pursuant to Section 6.01(a) (commencing with the event of any termination of all of fiscal year ended December 31, 2024) and the Revolving Credit Commitmentsrelated Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, on subject to clause (b)(vii) of this Section 2.05, cause to be prepaid an aggregate principal amount of Term Loans in an amount (the “Calculated ECF Amount”) equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period then ended minus, at the Borrower’s option, (B) the sum of (1) all voluntary prepayments of Term Loans during such Excess Cash Flow Period (and, at the sole discretion of the Borrower, the period from the end of such Excess Cash Flow Period to the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations prepayment pursuant to this Section 2.05(b)(i) unless after is made, in which case such amounts shall not be deducted in future Excess Cash Flow Periods), (2) all voluntary prepayments of Incremental Term Loans (only to the extent such Incremental Term Loans so prepaid were pari passu in right of payment and security to the Initial Term Loans) during such Excess Cash Flow Period (and, at the sole discretion of the Borrower, the period from the end of such Excess Cash Flow Period to the date that the prepayment pursuant to this Section 2.05(b)(i) is made, in full which case such amounts shall not be deducted in future Excess Cash Flow Periods) and (3) all voluntary prepayments of Revolving Credit Loans during such Excess Cash Flow Period (and, at the sole discretion of the Revolving Loans and Swing Line Loans Borrower, the Total Outstandings exceed period from the Total end of such Excess Cash Flow Period to the date that the prepayment pursuant to this Section 2.05(b)(i) is made, in which case such amounts shall not be deducted in future Excess Cash Flow Periods) to the extent the Revolving Credit Commitments then are permanently reduced by the amount of such prepayments, and in effectthe case of each of the immediately preceding clauses (1), (2) and (3), to the extent such prepayments (x) are not financed with the proceeds of long-term Indebtedness (other than the proceeds of Revolving Credit Loans) and (y) were not otherwise deducted in determining the amount of prepayment pursuant to this Section 2.05(b)(i) in any prior period, in each case, during such Excess Cash Flow Period (and, at the sole discretion of the Borrower, the period from the end of such Excess Cash Flow Period to the date that the prepayment pursuant to this Section 2.05(b)(i) is made, in which case such amounts shall not be deducted in future Excess Cash Flow Periods).
(ii) Not later than Subject to Section 2.05(b)(ix), if (1) Holdings, the fifth Business Day following the completion Borrower or any other Subsidiary of Holdings Disposes of any Asset Sale and/or not later property or assets (other than the tenth Business Day following the occurrence any Disposition of any Recovery property or assets permitted by Section 7.05(a), (b), (c), (d), (e), (f), (g), (h), (i), (k), (l), (m), (n), (p), (q), or (r)) or (2) any Casualty Event andoccurs, which results in each casethe realization or receipt by Holdings, the receipt Borrower or any other Subsidiary of Holdings of Net Cash Proceeds resulting therefromProceeds, the Borrower shall apply cause to be prepaid on or prior to the Required Prepayment Percentage date which is ten (10) Business Days after the date of such realization or receipt by Holdings, the Borrower or any other Subsidiary of Holdings of such Net Cash Proceeds, subject to clause (b)(vii) of this Section 2.05, an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)realized or received.
(iii) In the event and on each occasion that a Specified Equity Issuance occursSubject to Section 2.05(b)(ix), if Holdings, the Borrower shallor any other Subsidiary of Holdings incurs or issues any Indebtedness after the Closing Date not permitted to be incurred or issued pursuant to Section 7.03, substantially simultaneously the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom, together with the applicable Prepayment Premium, if any, on or prior to the date which is five (and in any event not later than the fifth 5) Business Day next following) the occurrence of such Specified Equity Issuance and Days after the receipt of Net Cash Proceeds resulting therefromby Holdings, apply the Required Prepayment Percentage Borrower or such Subsidiary of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Proceeds.
(iv) In No later than the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds Required Contribution Date, cash proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and Equity Cure Securities in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of Financial Covenant Cure Amount necessary to cure such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Financial Covenant Default.
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year[reserved].
(vi) The Each prepayment of Term Loans pursuant to Section 2.05(b) (A) shall be applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by the Borrower in the notice delivered pursuant to clause (vii) below, to any Class or Classes of Term Loans with a Maturity Date preceding the Maturity Date of the other Classes of Term Loans then outstanding, (B) shall deliver be applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the Borrower in the applicable notice and, if not specified, in direct order of maturity to repayments thereof required pursuant to Section 2.07(a) and (C) shall be paid to the Administrative Agent, at the time Appropriate Lenders with respect to each applicable Class of Term Loans in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each prepayment required under such Class of Term Loans, subject to clause (vii) of this Section 2.05(b). Notwithstanding clause (A) in the immediately preceding sentence, any Incremental Amendment or Extension Amendment may provide (iincluding on an optional basis as elected by the Borrower) for a certificate signed by a Responsible Officer less than ratable application of the Borrower setting forth in reasonable detail the calculation prepayments to any Class of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penaltyTerm Loans established thereunder.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) The Borrower shall notify the Administrative Agent in writing of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount any mandatory prepayment of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to clauses (i) through (iii) of this Section 3.05 and 2.05(b) at least two (B2) in Business Days prior to the case date of such prepayment (unless otherwise agreed by the Administrative Agent), provided that, the Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable principal Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment, the appropriate clause of this Section 2.05(b) applicable to such mandatory prepayment, and provide a reasonably detailed calculation of the aggregate amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required such prepayment to be made by the Borrower pursuant Borrower. The Administrative Agent may rely conclusively on such notice and shall have no obligation of any nature whatsoever to Section 3.05review or recalculate any amounts set forth therein. Notwithstanding anything herein The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
(viii) Promptly following written notice thereof to the contraryBorrower by the Administrative Agent, any Term Loan Lender may elect, by notice Revolving Credit Loans shall be repaid to the Administrative Agent by facsimile at least eight Business Days prior to extent that the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case aggregate Revolving Credit Exposure exceeds the aggregate amount of Revolving Credit Commitments.
(ix) All mandatory prepayments hereunder are subject to permissibility under (A) local Law, rule or regulation (e.g., financial assistance, corporate benefit, restrictions on up-streaming cash intra group and the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents fiduciary and statutory duties of the aggregate Term Loans directors of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.Subsidiaries and Holdings) and
Appears in 1 contract
Sources: Credit Agreement
Mandatory. (i) In Subject to clause (vi) below and except with respect to ABL Priority Collateral (as defined in the event ABL Intercreditor Agreement), if Holdings or any of its Subsidiaries Disposes of any termination property (other than any Disposition of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties any property permitted by Section 7.05 which results in the manner described realization by such Person of Net Cash Proceeds in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in excess of an aggregate amount of $2,500,000 per Fiscal Year), Borrowers shall prepay an aggregate principal amount of Term Loan equal to 100% of such excess; provided, however, that the Borrower shall not Net Cash Proceeds in excess of $2,500,000 no later than five Business Days following receipt thereof by such Person (such prepayments to be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iapplied as set forth in clause (v) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectbelow).
(ii) Not later than On the fifth Business Day following date of receipt by Holdings or any of its Subsidiaries of cash proceeds from a capital contribution to, or the completion issuance of any Asset Sale and/or not later Capital Stock of, Holdings or any of its Subsidiaries (other than the tenth Business Day following the occurrence issuances of any Recovery Event and, in each caseCapital Stock by a Subsidiary to Holdings and capital contributions by Holdings to a Subsidiary), the receipt Borrowers shall prepay an aggregate principal amount of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage Term Loan equal to 100% of such Net Cash Proceeds received with respect thereto therefrom no later than five Business Days following receipt thereof by such Person (such prepayments to prepay outstanding Loans and/or Cash Collateralize Letters of Credit be applied as set forth in accordance with Section 2.05(b)(viiclause (v) below).
(iii) In Upon the event incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness after the Closing Date not permitted to be incurred or issued pursuant to Section 7.03, Borrowers shall prepay an aggregate principal amount of Term Loan equal to 100% of all Net Cash Proceeds received therefrom no later than five Business Days following receipt thereof by such Person (such prepayments to be applied as set forth in clause (v) below).
(iv) Upon any Extraordinary Receipt (other than those Extraordinary Receipts arising from any ABL Priority Collateral (as defined in the ABL Intercreditor Agreement)) received by or paid to or for the account of Holdings or any of its Subsidiaries and not otherwise included in clause (i), (ii) or (iii) of this Section 2.03(b), Borrowers shall prepay an aggregate principal amount of Term Loan equal to 100% of all Net Cash Proceeds received therefrom in excess of the greater of $2,500,000 per Fiscal Year no later than five Business Days following receipt thereof by such Person (such prepayments to be applied as set forth in clause (v) below).
(v) Any prepayment of the Term Loan pursuant to this Section 2.03(b) shall be accompanied by all accrued interest on each occasion the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(vi) Notwithstanding any other provisions of this Section 2.03,
(1) to the extent that any of or all the Net Cash Proceeds of any Disposition by or Extraordinary Receipt of, a Specified Equity Issuance occursForeign Subsidiary prohibited or delayed by applicable local law from being repatriated to the United States, the Borrower shallportion of such Net Cash Proceeds so affected will not be required to be applied to repay the Term Loan at the times provided in this Section 2.03 but may be retained by the applicable Foreign Subsidiary so long, substantially simultaneously with but only so long, as the applicable local law, will not permit repatriation to the United States (Holdings hereby agreeing to use commercially reasonably efforts to otherwise cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds that, in each case, would otherwise be required to be used to prepay the Term Loan pursuant to Section 2.03(b)(i) or (iv), is permitted under the applicable local law, even if such cash is not actually repatriated at such time, an amount equal to such repatriated (or permitted to be repatriated) Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the fifth Business Day next followingrepayment of the Term Loan pursuant to this Section 2.03;
(2) to the occurrence extent that Borrowers have determined in good faith that repatriation of such Specified Equity Issuance and any of or all the receipt of Net Cash Proceeds resulting therefromof any Disposition or Extraordinary Receipt by any Foreign Subsidiary would have material adverse tax cost consequence (as determined by Borrowers) with respect to such Net Cash Proceeds, such Net Cash Proceeds so affected may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause, on or before the date on which any such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to Section 2.03(b), Borrowers may apply an amount equal to such Net Cash Proceeds to such reinvestments or prepayments, as applicable, as if such Net Cash Proceeds had been received by Borrowers rather than such Foreign Subsidiary, less the Required Prepayment Percentage amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that would be calculated if received by such Foreign Subsidiary); and
(3) to the extent that any of or all the Net Cash Proceeds of any Disposition by or Extraordinary Receipt of a Subsidiary is prohibited or delayed by restrictions in such Subsidiary’s Organization Documents, the portion of such Net Cash Proceeds therefrom so affected will not be required to prepay outstanding Loans and/or Cash Collateralize Letters be applied to repay the Term Loan at the times provided in this Section 2.03 but may be retained by the applicable Subsidiary so long, but only so long, as the applicable Organization Documents will not permit such repayment (Holdings hereby agreeing to cause the applicable Subsidiary to promptly take all actions reasonably required by such Organization Document to permit such repayment), and once such repayment of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive such affected Net Cash Proceeds from the issuance or other incurrence that, in each case, would otherwise be required to be used to make an offer of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted prepayment pursuant to Section 8.022.03(b)(i) or (iv), is permitted under the Borrower shallapplicable Organization Document such repayment will be immediately effected; and even if such cash is not actually repatriated at such time, substantially simultaneously with an amount equal to such Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repayment becomes possible) applied (net of additional taxes payable or reserved against as a result thereof) to the fifth Business Day next followingrepayment of the Term Loan pursuant to this Section 2.03. For the avoidance of doubt, nothing within this Section 2.03(b)(vi) the receipt of such Net Cash Proceeds by such shall require any Loan Party or such Subsidiary, apply an amount equal to cause any amounts to be repatriated to the Required Prepayment Percentage of United States (whether or not such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit amounts are used in accordance with Section 2.05(b)(vii).
(v) No later than or excluded from the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation determination of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (iihereunder), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Debtor in Possession Term Loan Agreement (EveryWare Global, Inc.)
Mandatory. (i) In The Borrower shall, on each date the event Revolving Credit Commitments are reduced pursuant to Section 2.11, prepay the Swingline Loans, 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 Swingline Loans, Revolving Loans, and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ii) If at any termination time the sum of the unpaid principal balance of the Term Loans, the Incremental Term Loans (if any), Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the Availability as determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall within three (3) Business Days and without notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Swingline Loans and Revolving Loans until paid in full, then to the Term Loans and the Incremental Term Loans (if any) on a combined ratable basis with respect to all such Loans until such Loans are paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Guaranteed Obligations owing with respect to the Letters of Credit.
(iii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to any outstanding Loans under the Revolving Facility, but without a reduction of the Revolving Credit Commitments, until payment in full thereof with any balance applied ratably to the Borrower shall, on outstanding Loans under the date Term Loan Facility. Each prepayment of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters under this Section 2.8(b) shall be made by the payment of Credit and/or Cash Collateralize the principal amount to be prepaid. Each cash collateralization of L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit made in accordance with Section 2.05(b)(vii)9.4.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. (i) In On any date that the event of any termination of all sum of the Revolving Loan plus the Letter of Credit CommitmentsExposure plus the Swing Line Loan exceeds the Total Commitment then in effect, the Borrower shall, on within one (1) Business Day, to the date extent of such terminationexcess, repay or first prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize to the L/C Obligations in a cash collateral account established with the Collateral Administrative Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize Lender (and the L/C Obligations in an aggregate other Lenders, as applicable) the outstanding principal amount equal of the Swing Line Advances, second prepay to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize Administrative Agent for the L/C Obligations pursuant to this Section 2.05(b)(i) unless after benefit of the prepayment in full Lenders on a pro rata basis the outstanding principal amount of the Revolving Loans Advances and Swing Line Loans any unpaid amounts of the Total Outstandings exceed Letter of Credit Obligations owed to the Total Revolving Lenders; and third make deposits into the Cash Collateral Account to provide cash collateral in the amount of such excess for the remaining Letter of Credit Commitments then in effectExposure.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following Upon the occurrence of any Disposition or any Recovery Event andin excess of $10,000,000.00 (except (i) to the extent that a Reinvestment Notice shall be delivered in respect of such Disposition or Recovery Event, (ii) Dispositions described in each caseclauses (a) through (h) and (j) and (k) of Section 6.8 or (iii) with respect to cash receipts in the ordinary course of business of the applicable recipient), then on the date of receipt by the Borrower or the applicable Restricted Subsidiary of the Net Cash Proceeds resulting therefromrelated thereto, the Borrower Advances shall apply immediately be prepaid by an amount equal to the Required Prepayment Percentage amount of such Net Cash Proceeds; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Advances shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event. For purposes of calculating the Net Cash Proceeds received with respect thereto from a Disposition or from a Recovery Event, such proceeds shall be determined as of the date of the applicable Disposition or Recovery Event, whether or not received on such date, but no such amount shall be required to prepay outstanding Loans and/or Cash Collateralize Letters be applied to prepayment of Credit in accordance with the Advances pursuant to this Section 2.05(b)(vii)until received by the applicable Person. The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 6.8.
(iii) In The Borrower agrees to make a mandatory prepayment of the event and on each occasion Advances by an amount equal to 75% of the Debt Incurrence Proceeds that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with or any of its Restricted Subsidiaries receives from each Debt Incurrence after the Effective Date within thirty (and in any event not later than 30) days after the fifth Business Day next following) the occurrence date of each such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Debt Incurrence.
(iv) In The Borrower agrees to make a mandatory prepayment of the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds Advances by such Loan Party or such Subsidiary, apply an amount equal to 75% (or, so long as the Required Prepayment Percentage Leverage Ratio is less than 1.75 to 1.00, 0%) of such Net Cash the Equity Issuance Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters that the Borrower or any of Credit in accordance with Section 2.05(b)(vii).
its Restricted Subsidiaries receives from each Equity Issuance after the Effective Date within thirty (v30) No later than the earlier of (i) 90 days after the end date of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal yearEquity Issuance.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. Subject to the provisions of the Intercreditor Agreement but only following the payment in full of the First Lien Obligations (provided that outstanding letters of credit under the First Lien Senior Credit Facilities shall be deemed paid when cash collateralized as provided therein) and the termination of the First Lien Senior Credit Facilities:
(i) In The Borrower shall, on the event 90th day following the end of any termination each Fiscal Year, beginning with the Fiscal Year in which the First Lien Obligations have been paid in full and the First Lien Senior Credit Facilities have been terminated (provided that outstanding letters of all credit under the First Lien Senior Credit Facilities shall be deemed paid when cash collateralized as provided therein), prepay an aggregate principal amount of the Revolving Credit CommitmentsAdvances in an amount equal to, (A) at any time when the Total Leverage Ratio is greater than or equal to 4.00:1.00, 75% of the amount of Excess Cash Flow for such Fiscal Year, (B) at any time when the Total Leverage Ratio is greater than or equal to 3.50:1.00 and less than 4.00:1.00, 50% of the amount of Excess Cash Flow for such Fiscal Year, (C) at any time when the Total Leverage Ratio is greater than or equal to 3.00:1.00 and less than 3.50:1.00, 25% of the amount of Excess Cash Flow for such Fiscal Year and (D) at any time when the Total Leverage Ratio is less than 3.00:1.00, 0% of the amount of Excess Cash Flow for such Fiscal Year.
(ii) The Borrower shall, on the date of such terminationreceipt of any Net Cash Proceeds by any Loan Party or any of its Subsidiaries, repay in each case after the First Lien Obligations have been paid in full and the First Lien Senior Credit Facilities have been terminated (provided that outstanding letters of credit under the First Lien Senior Credit Facilities shall be deemed paid when cash collateralized as provided therein), from (A) the sale, lease, transfer or prepay all outstanding Revolving Credit Loans other disposition of any assets of any Loan Party or any of its Subsidiaries (other than any sale, lease, transfer or other disposition of assets pursuant to clauses (i) through (viii) of Section 5.02(e)), (B) the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt incurred or issued pursuant to Section 5.02(b)), (C) the issuance of any class of equity, (D) any capital contribution and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent (E) any Casualty Receipt received by or paid to or for the benefit account of any Loan Party or any of its Subsidiaries, prepay an aggregate principal amount of the Secured Parties Advances in an amount equal to (x) 100% of the amount of such Net Cash Proceeds in the manner described case of clauses (A), (B) and (E), and (y) 50% of the amount of such Net Cash Proceeds, in Section 2.03(gthe case of clauses (C) and (D). No prepayment made with Net Cash Proceeds received as a result of a transaction not permitted by Section 5.02(b), (e) or (g)(i) shall be deemed either to cure any Default resulting from a breach of Section 5.02(b), (e) or (g)(i) or to waive any Lender's rights and remedies in connection therewith.
(iii) All prepayments under this subsection (b) shall be made together with (A) accrued interest to the date of such prepayment on the principal amount prepaid, (B) any amounts owing pursuant to Section 9.04(c), and (C) any prepayment premium payable pursuant to clause (c) of this Section 2.04. If for any reason payment of Eurodollar Rate Advances otherwise required to be made under this Section 2.04(b) would be made on a day other than the Total Outstandings at any time exceed last day of the Total Revolving Credit Commitments then in effectapplicable Interest Period therefor, the Borrower may direct the Administrative Agent to (and if so directed, the Administrative Agent shall) deposit such payment in the Collateral Account until the last day of the applicable Interest Period at which time the Administrative Agent shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize apply the L/C Obligations in an aggregate amount equal of such payment to the prepayment of such excessAdvances; provided, however, that the Borrower such Advances shall not be required continue 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting bear interest as set forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with until the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case last day of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementtherefor.
Appears in 1 contract
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the The Borrower shall, on within three Business Days of the date of receipt of Net Cash Proceeds by the Borrower or any of its Subsidiaries, prepay an aggregate principal amount of the Term Advances in the percentage of the amount of such Net Cash Proceeds as hereinafter set forth: (A) 100% of the Net Cash Proceeds from the sale of the Identified Assets up to a maximum amount of $7.2 million, (B) 100% of the Net Cash Proceeds from the sale of other assets of the Borrower and its Subsidiaries (excluding sales of Inventory or services in the ordinary course of business but including any non-ordinary course IRUs), (C) 100% of the Net Cash Proceeds from Extraordinary Receipts, (D) 100% of the Net Cash Proceeds from the issuance of additional Debt (other than Subordinated Debt) permitted under the Loan Documents (other than Debt pursuant to Section 5.02(b)), (E) 50% of the Net Cash Proceeds from the issuance of Subordinated Debt in excess of $25,000,000 (other than the Subordinated Cerberus Notes), and (F) 50% of the Net Cash Proceeds from the issuance of equity. Any such prepayment (other than one-half of the Net Cash Proceeds described in clause (B) above) shall be applied to prepay the Term Advances in inverse order of maturity and any prepayments made with the remaining one-half of the Net Cash Proceeds described in clause (B) above shall be applied to ratably prepay the remaining scheduled amortization payments for the Term Advances. For purposes hereof, non-ordinary course IRUs shall include IRUs for a term in excess of 10 years for which 75% or more of the aggregate dollar amount of lease payments are to be paid within the first 35% of such lease term.
(ii) All prepayments under this subsection (b) shall be made together with accrued interest to the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters prepayment on the principal amount prepaid. If any payment of Credit and/or Cash Collateralize Eurodollar Rate Advances otherwise required to be made under this Section 2.03(b) would be made on a day other than the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit last day of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectapplicable Interest Period therefor, the Borrower may direct the Administrative Agent to (and if so directed, the Administrative Agent shall) deposit such payment in the Collateral Account until the last day of the applicable Interest Period at which time the Administrative Agent shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize apply the L/C Obligations in an aggregate amount equal of such payment to the prepayment of such excessTerm Advances; provided, however, that such Term Advances shall continue to bear interest as set forth in Section 2.04 until 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 last day of the Revolving Loans and Swing Line Loans applicable Interest Period therefor. Notwithstanding the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andforegoing, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of any such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment dateEffective Date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined prepayments shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents Effective Date, together with interest, as more fully set forth in the Plan of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementReorganization.
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Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed sum of the Total total Revolving Credit Exposures of all of the Lenders exceeds the Aggregate Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations shall, as soon as practicable but in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not no event later than the fifth three (3) Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than Days after the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (iiA) the date on which the financial statements with respect to Borrower learns thereof and (B) the date on which the Administrative Agent so requests in writing, prepay the Loans outstanding at such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), time in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal yearthe excess over the Aggregate Commitments.
(viii) The Immediately upon the receipt by the Borrower or any Subsidiary of the Net Cash Proceeds of any Debt Issuance, the Borrower shall deliver to prepay the Administrative Agent, Loans outstanding at the such time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% one hundred percent (100%) of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no Net Cash Proceeds (which prepayment shall be accompanied by a corresponding permanent reduction of the Revolving Credit Aggregate Commitments); with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect provided, that, if, as of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective date of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment receipt of the Term Loans as described below, then, with respect to such mandatory prepaymentany Net Cash Proceeds of any Debt Issuance, the amount of the Loans outstanding at such mandatory time is less than the amount of such Net Cash Proceeds, (A) such Net Cash Proceeds shall be immediately applied to prepay in full the Loans then outstanding (if any) at such time (which prepayment shall be applied (A) in the case accompanied by a corresponding permanent reduction of the applicable principal amount Aggregate Commitments), and (B) the Aggregate Commitments shall be automatically and permanently reduced on the date of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in receipt of such Net Cash Proceeds on a manner that minimizes dollar-for-dollar basis by the amount of any payments Net Cash Proceeds not used to prepay outstanding Loans pursuant to clause (A) above; provided, further, that, the Borrower shall not be required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of make any prepayment of its Term Loans or to reduce the Aggregate Commitments, in each case pursuant to sub-paragraphs (iithis Section 3.05(b)(ii), (iii), (iv) or (v) of this Section, in which case unless and until the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained Net Cash Proceeds received by the Borrower to be used and its Subsidiaries in accordance connection with all Debt Issuances consummated after the provisions of this AgreementEffective Date exceeds $25,000,000.
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Mandatory. (i) In Upon the event incurrence or issuance by any Loan Party or any Company Group Party of any termination Indebtedness (other than Indebtedness not prohibited to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Revolving Credit Loans equal to 100% of all of Net Cash Proceeds received by any Loan Party or Company Group Party therefrom, immediately upon receipt thereof by such Loan Party or such Company Group Party (such prepayments to be applied as set forth in clause (iii) below).
(ii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit CommitmentsFacility at such time, the Borrower shall, on the date of such termination, repay or shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit L/C Borrowings and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize (other than the L/C Obligations Borrowings) in an aggregate amount equal to such excess; provided.
(iii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.04(b), howeverfirst, that shall be applied ratably to the Borrower L/C Borrowings, second, shall not be required applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i) of this Section 2.05(b)(i) unless 2.04(b), the amount remaining, if any, after the prepayment in full of the Revolving Loans all L/C Borrowings and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of Loans outstanding at such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance time and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Collateralization of the Borrower, commencing with remaining L/C Obligations in full (the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount sum of such prepayment amounts, cash collateralization amounts and (ii) to the extent practicableremaining amount being, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment datecollectively, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof“Reduction Amount”) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.05(b)(i). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to be used in accordance with or from the provisions of this AgreementBorrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (NRG Yield, Inc.)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Aggregate Commitments then in effectat such time, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(ii) Upon the occurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all net cash proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary.
(iii) If the Borrower or any of its Subsidiaries receives any condemnation proceeds or insurance proceeds (other than business interruption insurance proceeds) on account of any Collateral Loss in excess of $2,000,000, then the Borrower shall, promptly upon receipt thereof, apply (or cause the applicable Subsidiary to apply) such proceeds first, as a mandatory prepayment of the then outstanding Revolving Credit Loans, second, if an Event of Default is continuing, to Cash Collateralize the then Outstanding Amount of all L/C Obligations in an amount equal to 100% of the amount thereof, and third, any remaining amounts may be retained by the Borrower or the applicable Subsidiary; provided, however, that if no Event of Default is continuing, the Borrower shall not be required to Cash Collateralize or the L/C Obligations pursuant to this Section 2.05(b)(i) unless applicable Subsidiary may, at its election, within 12 months after the receipt of such proceeds, replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received; and provided, further, that any cash proceeds not so applied within such 12 month period shall be immediately applied to the prepayment in full of the Revolving Credit Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments (if any are then outstanding) as set forth in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with this Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(iii).
(iv) In Any mandatory prepayments hereunder shall be accompanied by all accrued interest on the event that amount prepaid together with any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted additional amounts required pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)3.06.
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. (i) In If the event of any termination of all of the Revolving Credit CommitmentsParent, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Subsidiary shall at any time exceed or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $1,000,000 (or the Total Revolving Credit Commitments equivalent thereof in another currency) individually or on a cumulative basis in any fiscal year of the Parent, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Parent, the Borrower or such Subsidiary in effectrespect thereof) and (y) promptly upon receipt by the Parent, the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, the Borrower shall immediately prepay all outstanding Revolving Credit the Term Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such excessNet Cash Proceeds (or to all outstanding Loans and L/C Obligations if an Event of Default exists); providedprovided that in the case of each Disposition and Event of Loss, howeverif the Parent or the Borrower states in its notice of such event that the Parent, that the Borrower or the applicable Subsidiary intends to reinvest, within 90 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition or Event of Loss, then so long as no Default or Event of Default then exists, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to make a mandatory prepayment under this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or the extent such Net Cash Collateralize Letters of Credit Proceeds are actually reinvested in accordance such similar assets with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days such 90-day period. Promptly after the end of such 90-day period, the Borrower shall notify the Administrative Agent whether the Parent, 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 Term Loans in the amount of such Net Cash Proceeds not so reinvested (or to all outstanding Loans and L/C Obligations if an Event of Default exists). The amount of each fiscal year such prepayment shall be applied on a ratable basis among the relevant outstanding Obligations of the Borrowerseveral Lenders based on the principal amounts thereof. If a Default or Event of Default exists, commencing all proceeds of such Disposition or Event of Loss shall be deposited with the fiscal year ending on December 31Administrative Agent and held by it in the Collateral Account. So long as no Default or Event of Default exists, 2007the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower's direction for application to or reimbursement for the costs of replacing, and rebuilding or restoring such Property.
(ii) If after the date on which Closing Date the financial statements Parent, the Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Parent, the Borrower or such Subsidiary in respect to thereof. Promptly upon receipt by the Parent, the Borrower or such period are delivered pursuant to Section 7.01(a)Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Term Loans (or to all outstanding Loans and/or Cash Collateralize Letters and L/C Obligations if an Event of Credit in accordance with Section 2.05(b)(vii), Default exists) in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation 100% of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender)Net Cash Proceeds. Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal The amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 such prepayment shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans applied on a pro rata ratable basis (in accordance with among the respective relevant outstanding Obligations of the several Lenders based on the principal amounts thereof) to . The Borrower acknowledges that its performance hereunder shall not limit the full extent thereof (rights and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction remedies of the Revolving Credit Commitments; and third, at Lenders for any time when there shall be no Term Loans outstanding, to Cash Collateralize breach of Section 8.11 hereof or any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions other terms of this Agreement.
(viiiiii) Mandatory prepayments If after the Closing Date the Parent, the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a), (b), (c), (d), (e) or (g) hereof, the Borrower shall promptly notify the Administrative Agent of outstanding the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Parent, the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Parent, the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments (or to all outstanding Loans and L/C Obligations if an Event of principal due Default exists) in respect an aggregate amount equal to 100% of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07amount of such Net Cash Proceeds. Such mandatory prepayments The amount of each such prepayment shall be applied on a pro rata ratable basis among the relevant outstanding Obligations of the several Lenders based on the principal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 hereof or any other terms of this Agreement.
(iv) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the Revolving Loans and, if necessary, prefund 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 Commitments have been so reduced.
(v) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding Term shall be in excess of the Borrowing Base as then determined and computed, the Borrower shall immediately and without notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans being prepaid irrespective until payment in full thereof with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of whether such outstanding Term Credit.
(vi) Unless the Borrower otherwise directs, prepayments of Loans are under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans or Eurocurrency until payment in full thereof, then to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire, then to the Fixed Rate Loans; provided that if no Lenders decline a given mandatory Loan. Each prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment under this Section 1.9(b) shall be applied (A) made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, the applicable principal amount of the Tranche B Term Loans being so prepaidFixed Rate Loan or Eurodollar Loans, first to Tranche B Term Loans that are Base Rate Loans accrued interest thereon to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount date of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) prepayment together with, in the case of any Eurodollar Loans or the applicable principal amount Fixed Rate Loan, any amounts due the Lenders under Section 1.12 hereof. Each prefunding of the Tranche L/C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to Obligations shall be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 9.4 hereof.
Appears in 1 contract
Mandatory. (i) In On any date that (a) the event sum of any termination the outstanding principal amount of all Swing Line Advances and all Revolving Advances plus the Letter of Credit Exposure exceeds (b) the Revolving Credit aggregate amount of Commitments, as notified to the Borrower shall, on by the date of Administrative Agent (with such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations calculation set forth in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower reasonable detail which shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02conclusive absent manifest error), the Borrower shall, substantially simultaneously with (and in any event not later than within one Business Day, to the fifth Business Day next following) the receipt extent of such excess, first prepay to the Swing Line Lender the outstanding principal amount of the Swing Line Advances, second prepay to the Lenders on a pro rata basis the outstanding principal amount of the Revolving Advances, and third make deposits into the Cash Collateral Account to provide cash collateral in the amount of such excess for the Letter of Credit Exposure.
(ii) If the Borrower or any Subsidiary completes an Asset Sale or is subject to a Casualty Event, in each case which results in Net Cash Proceeds by such Loan Party or such Subsidiaryin excess of $1,000,000 in any fiscal year, then the Borrower shall, no later than three Business Days following the receipt thereof, apply an amount equal to the Required Prepayment Percentage 100% of such Net Cash Proceeds first to prepay to the Lenders on a pro rata basis the outstanding Loans and/or principal amount of the Term Advances, second to prepay to the Swing Line Lender the outstanding principal amount of the Swing Line Advances, secondthird to prepay to the Lenders on a pro rata basis the outstanding principal amount of the Revolving Advances, and thirdfourth to make deposits into the Cash Collateralize Letters Collateral Account to provide cash collateral for the Letter of Credit in accordance with Section 2.05(b)(vii).
Exposure; provided that, (vA) No later than if no Event of Default exists or would arise therefrom, then such proceeds shall not be required to be so applied on such date to the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the extent that Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) have delivered 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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (on or portion thereof) prior to such date stating that such Net Cash Proceeds are reasonably expected to be prepaid. All prepayments reinvested in fixed or capital assets of Borrowings pursuant any Credit Party within 180 days following the date of such Asset Sale or Casualty Event (which officers’ certificate shall set forth the estimates of the proceeds to this Section 2.05 be so expended); and (B) if all or any portion of such Net Cash Proceeds are not reinvested within such 180-day period as provided in clause (A) above, then 100% of such unused portion shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) applied on the last day of this Section shall be applied: first, such period first to prepay outstanding Term Loans to the Lenders on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of the Term Loans so prepaid)Advances, subject second to prepay to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay Swing Line Lender the outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid)the Swing Line Advances, with no corresponding reduction of secondthird to prepay to the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied Lenders on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaidRevolving Advances, first and thirdfourth to Tranche B Term Loans that are Base Rate Loans make deposits into the Cash Collateral Account to provide cash collateral for the Letter of Credit Exposure.
(iii) If an increase in the aggregate Commitments is effected as permitted under Section 2.15, the Borrower shall prepay any Revolving Advances outstanding on the date such increase is effected to the full extent thereof before application necessary to Tranche B Term Loans that are Eurocurrency Rate Loans keep the outstanding Revolving Advances ratable to reflect the revised Pro Rata Shares of the Lenders arising from such increase. Any prepayment made by Borrower in a manner that minimizes the amount of any payments required to accordance with this clause (iii) may be made by with the Borrower pursuant to Section 3.05 and (B) in the case proceeds of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be Revolving Advances made by all the Borrower pursuant to Section 3.05. Notwithstanding anything herein to Lenders in connection such increase occurring simultaneously with the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), prepayment.
(iv) If the Borrower or any Subsidiary receives Debt Incurrence Proceeds other than those resulting from Permitted Debt, then not later than three Business Days following the receipt of such proceeds, the Borrower shall prepay the Term Advances in an amount equal to 100% of such Debt Incurrence Proceeds.
(v) If the Borrower or any Subsidiary receives Equity Issuance Proceeds (other than Equity Issuance Proceeds from an Excluded Equity Issuance) or receives cash capital contributions on account of this Section, in which case the aggregate amount then existing Equity Interests of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on Borrower, then not later than three Business Days following the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In the event receipt of such a re-offerproceeds, the relevant Lenders may elect, by notice Borrower shall prepay the Term Advances in an amount equal to the Administrative Agent by facsimile within two Business Days of receiving notification 100% of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementEquity Issuance Proceeds.
Appears in 1 contract
Sources: Commitment Increase Agreement and Second Amendment (Hi-Crush Partners LP)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Each Borrower shall, on the date of such terminationeach Business Day, repay or if applicable, prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established (with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in no corresponding commitment reduction) an aggregate principal amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans owed by such Borrower and Swing comprising part of the same Borrowings in an amount equal to the amount by which (A) the sum of (x) the aggregate principal amount of the Revolving Loans owed by such Borrower and then outstanding plus (y) the aggregate applicable Letter of Credit Obligations then outstanding exceeds (B) the applicable Line Cap (except as a result of Protective Revolving Loans made under Section 2.01(c) and not outstanding for more than 90 consecutive days); provided that in respect of any prepayment under this subsection directly attributable to any adjustment of Reserves, such prepayment shall be made not later than the Total Outstandings exceed Business Day immediately following the Total Revolving Credit Commitments then in effectdate such adjusted Reserves became effective.
(ii) Not later than Within three (3) Business Days of receipt by the fifth Business Day following Company or any of its Subsidiaries of the completion Net Cash Proceeds of any Asset Sale and/or not later than or Casualty Event that results from the tenth Business Day following the occurrence sale or other disposition of any Recovery Event andAccounts, Inventory, Equipment or machinery that in each casecase constitutes Collateral, the receipt of Net Cash Proceeds resulting therefrom, the Borrower Company shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage 100% of such Net Cash Proceeds to prepay outstanding the Loans and/or and, unless the conditions set forth in Section 3.02 are at the time satisfied and a Responsible Officer of the Company shall have delivered to the Agent a certificate to such effect (in which case such amounts may be transferred by the Company to a Collection Account and used by the Company and its Subsidiaries for general corporate purposes), to Cash Collateralize Letters the Letter of Credit Obligations in accordance with the following order: first to the ratable prepayment of the outstanding Revolving Loans until all such Loans have been prepaid in full, second to Cash Collateralize the Letter of Credit Obligations (if required) and third to the ratable prepayment of the outstanding Term Loans until all such Loans have been prepaid in full.
(iii) On each Business Day, all amounts collected in the Digital Imaging Patent Portfolio Disposition Cash Collateral Account, will be applied to prepay the Loans and, unless the conditions set forth in Section 2.05(b)(vii3.02 are at the time satisfied and a Responsible Officer of the Company shall have delivered to the Agent a certificate to such effect (in which case such amounts may be transferred by the Company to a Collection Account and used by the Company and its Subsidiaries for general corporate purposes), to Cash Collateralize the Letter of Credit Obligations in the following order: first to the ratable prepayment to the outstanding Term Loans until all such Loans have been prepaid in full, second to the ratable prepayment of the outstanding Revolving Loans until all such Loans have been prepaid in full and third to Cash Collateralize the Letter of Credit Obligations (if required).
(iv) Subject to Section 2.10(b)(viii), within three (3) Business Days after the day of receipt by the Company or any of its Subsidiaries of Other Proceeds, the Company shall apply an amount equal to the Applicable Prepayment Percentage of such Other Proceeds to prepay the Loans and to Cash Collateralize the Letter of Credit Obligations in the order set forth in (and, in the case of the Letter of Credit Obligations, to the extent required by) Section 2.10(b)(iii).
(v) No later Each prepayment of principal pursuant to this Section 2.10(b) shall be applied first to outstanding Base Rate Loans of each applicable Class up to the full amount thereof and then to outstanding Eurodollar Rate Loans of each applicable Class up to the full amount thereof. Each prepayment made pursuant to this Section 2.10(b) shall be made together with any interest accrued to the date of such prepayment on the principal amounts prepaid and, in the case of any prepayment of a Eurodollar Rate Loan on a date other than the earlier last day of (i) 90 days after the end of each fiscal year of the Borroweran Interest Period or at its maturity, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on any additional amounts which the financial statements with applicable Borrower shall be obligated to reimburse to the Lenders in respect to such period are delivered thereof pursuant to Section 7.01(a8.04(c), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower Agent shall deliver to the Administrative Agent, at the time give prompt notice of each any prepayment required under this Section 2.05(b), (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 (ii2.10(b) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penaltyLenders.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount No prepayment of Revolving Loans so prepaid), with no corresponding reduction of or Cash Collateralization made pursuant to this Section 2.10(b) shall reduce the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters Commitments or the Letter of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments Notwithstanding any other provisions of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans Section 2.10(b) and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, except with respect to any Digital Imaging Patent Portfolio Disposition or IP Settlement Agreement, and with respect only to any Asset Sale, IP License or Casualty Event described in Section 2.10(b)(iv), to the extent that applicable law would (x) prohibit or delay the repatriation to the United States of America or Canada of any Net Cash Proceeds received by any Subsidiary that is not a US Subsidiary or a Canadian Subsidiary or (y) impose material adverse tax or legal consequences on the Company and its Subsidiaries if such mandatory prepaymentNet Cash Proceeds were so repatriated, in each case as determined by the Company in good faith, the amount portion of such mandatory prepayment Net Cash Proceeds so affected shall be applied (A) in the case disregarded for purposes of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes determining the amount of any payments mandatory prepayment required to be made under Section 2.10(b) so long, but only so long, as applicable local law would prohibit such repatriation (the Company hereby agreeing to promptly take or to cause the applicable Subsidiary to promptly take (as the case may be) all actions required by the Borrower applicable local law to permit such repatriation) or impose such material adverse tax consequences, and at such time as such repatriation of any such Net Cash Proceeds becomes permitted under the applicable local law and/or such material adverse tax consequences would no longer exist (and in any event within three Business Days thereafter) (and whether or not any of such Net Cash Proceeds are actually repatriated), the Company shall prepay the Loans and Cash Collateralize the Letter of Credit Obligations pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii2.10(b)(iv), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Debt Agreement (Eastman Kodak Co)
Mandatory. (i) In the event of If, at any termination of all of the Revolving Credit Commitmentstime, the Borrower shallTotal Outstandings at such time exceed the Maximum Revolving Credit, on then, (A) to the date of such terminationextent that the Administrative Agent is exercising its rights to sweep cash under any Control Account, repay or within one Business Day and (B) to the extent that the Administrative Agent is not exercising its rights to sweep cash under any Control Account, within three (3) Business Days, in either case, the Borrowers shall prepay all the outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or the Cash Collateralize the outstanding L/C Obligations (including by depositing funds in the L/C Obligations in a cash collateral account established with the Cash Collateral Agent for the benefit of the Secured Parties in the manner described in Account pursuant to Section 2.03(g2.04(h)(i). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations ) in an aggregate amount sufficient to reduce the amount of Total Outstandings as of such date of payment to an amount less than or equal to such excessthe Maximum Revolving Credit; provided, however, that that, subject to the Borrower provisions of Section 2.04(h)(ii), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.06(b) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Maximum Revolving Credit Commitments then in effectabove at such time.
(ii) Not later than At any time following the fifth occurrence and during the continuation of a Liquidity Period, within one Business Day following the completion receipt of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefromin respect of any Disposition of ABL Priority Collateral or any Net Insurance/Condemnation Proceeds constituting ABL Priority Collateral, the Borrower Borrowers shall apply the Required Prepayment Percentage an amount equal to 100% of such Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as applicable, received with respect thereto to prepay the outstanding principal amount of the Loans and/or Cash Collateralize Letters the outstanding L/C Obligations, and the Borrowers shall deliver an updated Borrowing Base Certificate to the Administrative Agent on the date of Credit in accordance with Section 2.05(b)(vii)any such Disposition or receipt of Net Insurance/Condemnation Proceeds.
(iii) In Prepayments of the event and on each occasion that a Specified Equity Issuance occursFacilities made pursuant to this Section 2.06(b), shall be applied, first, to the Borrower shallL/C Borrowings, substantially simultaneously with (and in any event not later than Swingline Loans or Protective Advances, second, ratably to the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or and third, to Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)the remaining L/C Obligations.
(iv) In the event that any Loan Party or any Subsidiary case of a Loan Party shall receive Net Cash Proceeds from prepayments of the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted Facilities required pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of clause (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and or (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid2.06(b), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Loans, outstanding at such mandatory prepayment shall be applied (A) in time and the case Cash Collateralization of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the remaining L/C Obligations in full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower Borrowers for use in the ordinary course of their business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held in the L/C Cash Collateral Account shall be applied (without any further action by or notice to be used in accordance with or from the provisions of this AgreementBorrowers or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Mandatory. (a) The Company shall, upon receipt by the Parent or the Company of any Net Cash Proceeds from the incurrence, sale or issuance of the Take-Out Securities, deposit or cause to be deposited the amount of such Net Cash Proceeds (in an amount not to exceed the amount necessary to pay the Obligations due to the Holders in full) with the Indenture Trustee or any Paying Agent for prepayment of Securities in accordance with Section 902(d).
(b) The Company shall, upon receipt by the Parent or any Subsidiary of the Parent of the Net Cash Proceeds from any Asset Sale, deposit or cause to be deposited the amount of such Net Cash Proceeds with the Indenture Trustee or any Paying Agent for prepayment of Securities in accordance with Section 902(d) to the extent any such Net Cash Proceeds are not used to (i) In prepay Senior Outstandings or to cash collateralize letters of credit outstanding under the event Senior Credit Agreement (and, in the case of any termination of all of revolving credit Indebtedness under the Revolving Senior Credit Agreement, with corresponding commitment reductions thereunder) or (ii) in the case where there are no Senior Outstandings, to permanently reduce Senior Commitments, provided that (1) during any Fiscal Year, no such deposit or prepayment shall be required with respect to the Borrower shallfirst $5,000,000 in Net Cash Proceeds received in connection with any Asset Sale, on (2) no such deposit or prepayment shall be required from Net Cash Proceeds until such Net Cash Proceeds aggregate $1,000,000 or more and (3) the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower Company 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall so apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of case where such Net Cash Proceeds therefrom (in a total amount of up to prepay outstanding Loans and/or Cash Collateralize Letters $50,000,000 in the aggregate since the Effective Date) are used to make a Permitted Acquisition or acquire replacement or fixed assets useful in the business of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party Company or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from its Subsidiaries or to effect repairs or replacements of the issuance or other incurrence assets disposed of, in each case within 180 days of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds.
(c) The Company shall, upon receipt by the Parent or any Subsidiary of the Parent of the Net Cash Proceeds by such Loan Party from any Debt Issuance, deposit or such Subsidiary, apply an cause to be deposited the amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters with the Indenture Trustee or any Paying Agent for prepayment of Credit Securities in accordance with Section 2.05(b)(vii902(d), to the extent any such Net Cash Proceeds are not used to (i) prepay Senior Outstandings or to cash collateralize letters of credit outstanding under the Senior Credit Agreement (and, in the case of any revolving credit Indebtedness under the Senior Credit Agreement, with corresponding commitment reductions thereunder) or (ii) in the case where there are no Senior Outstandings, to permanently reduce Senior Commitments, provided that no such deposit or prepayment under this Section 902(c) shall be required from Net Cash Proceeds until such Net Cash Proceeds aggregate $1,000,000 or more.
(vd) No later than On the earlier of (i) 90 days after Prepayment Date, the end of each fiscal year of the Borrower, commencing Indenture Trustee or any Paying Agent shall use such Net Cash Proceeds deposited with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered it pursuant to Section 7.01(a902(a), (b) and (c) to prepay Outstanding Securities at the Borrower Prepayment Price. Each such prepayment shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal be applied ratably to the Required Prepayment Percentage of Excess Cash Flow for Securities, and to the fiscal year then ended less remaining installments thereof pro rata. Amounts deposited with the aggregate amount of all Voluntary Prepayments during Indenture Trustee or any Paying Agent under this Section 902 may not be withdrawn except to effect such fiscal yearprepayment as provided herein.
(vie) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required All prepayments under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of 902 shall be made together with accrued interest to the Borrower setting forth in reasonable detail the calculation of the amount date of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Indenture (Warnaco Group Inc /De/)
Mandatory. The Borrower shall make mandatory prepayments as follows:
(i) In If on the event last day of any termination of all of an Excess Cash Flow Period a Rating Condition exists, within ten Business Days after financial statements for such Excess Cash Flow Period have been delivered pursuant to Section 6.01(a)(i) and the Revolving Credit Commitmentsrelated Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shallshall make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to the product of the applicable Excess Cash Flow Prepayment Percentage times Excess Cash Flow for such Excess Cash Flow Period.
(ii) If the Borrower or any of its Restricted Subsidiaries Disposes of any property, other than pursuant to any Excepted Disposition, which results in the realization by such Person of Net Cash Proceeds in an amount equal to more than $25,000,000 (or $15,000,000 if a Default has occurred and is continuing) (whether in a single transaction or on an aggregate basis), but only if a Rating Condition exists on the date such monetary threshold is met, the Borrower shall make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess of $15,000,000 within five Business Days after receipt thereof by such Person; provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such terminationDisposition), repay and so long as no Default shall have occurred and be continuing, the Borrower or prepay such Restricted Subsidiary may reinvest all outstanding or any portion of such Net Cash Proceeds in assets useful in the business of the Borrower and its Restricted Subsidiaries so long as (i) within 12 months after the receipt of such Net Cash Proceeds, the purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent), or (ii) within 12 months after the receipt of such Net Cash Proceeds, the Borrower or such Restricted Subsidiary shall have entered into a definitive agreement to reinvest such Net Cash Proceeds in assets useful in the business of the Borrower and its Restricted Subsidiaries, and the purchase of such assets shall have been consummated within six months after the end of such 12 month period; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, without premium or penalty (except for amounts required under Section 3.05), first, ratably to the principal repayment installments with respect to the Term Facility under Section 2.07(a) and any principal repayment installments with respect to each Additional Term Loan Facility (unless the amendment or supplement to this Agreement executed in connection with such Additional Term Loan Facility otherwise provides), in direct order of maturity and, second, to the Revolving Credit Loans and all outstanding Facility in the manner set forth in clause (v) of this Section 2.05(b); provided that each Term Lender or Additional Term Facility Lender may reject its portion of the mandatory prepayment with respect to the Term Facility or Additional Term Facility, as applicable, in which event the Borrower may retain the portion of the mandatory prepayment so rejected.
(iv) Whether or not a Rating Condition exists, if for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and replace all outstanding Letters of Credit L/C Borrowings and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize (other than the L/C Obligations Borrowings) in an aggregate amount equal to such excess; provided.
(v) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), howeverfirst, that shall be applied ratably to the Borrower L/C Borrowings and the Swing Line Loans, second, shall not be required applied ratably to the outstanding Revolving Credit Loans, and third, if the Cash Collateralize Collateralization of the Outstanding Amount of the L/C Obligations is then required, but has not been effected, hereunder, to such Cash Collateralization; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i) or (ii) of this Section 2.05(b)(i) unless 2.05(b), the amount remaining, if any, after the prepayment in full of the Revolving Loans and all L/C Borrowings, Swing Line Loans the Total Outstandings exceed the Total and Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andLoans outstanding at such time, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to be used in accordance with or from the provisions of this AgreementBorrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Universal American Financial Corp)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, If the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Subsidiary shall at any time exceed or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Total Revolving Credit Commitments then Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in effectrespect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such excessNet Cash Proceeds; provided, howeverin the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to make a mandatory prepayment under this Section 2.05(b)(i) unless in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving of Credit Commitments then Commitments) until paid in effectfull.
(ii) Not later If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the fifth exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business Day following in connection with an Acquisition permitted by the completion of terms hereof, if any) or incur any Asset Sale and/or not later Indebtedness other than the tenth Business Day following the occurrence of any Recovery Event and, in each casethat permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds resulting therefrom, of such issuance or incurrence the Borrower shall apply prepay the Required Prepayment Percentage Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of Indebtedness any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any Loan Party reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any Subsidiary other terms of a Loan Party this Agreement.
(other than Indebtedness permitted iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 8.02)6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2011, the Borrower shall, substantially simultaneously with (and in any event not later than shall prepay the fifth Business Day next following) the receipt of such Net Cash Proceeds then-outstanding Loans by such Loan Party or such Subsidiary, apply an amount equal to (x) the Required Prepayment applicable ECF Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than for the earlier of (i) 90 days after the end of each most recently completed fiscal year of the Borrower, commencing with multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 20072011, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less period commencing on the aggregate amount first day of all Voluntary Prepayments during the first month following the Closing Date through the end of such fiscal year.
(vi) . The Borrower amount of each such prepayment shall deliver be applied first to the Administrative Agent, at outstanding Term Loans until paid in full and then to the time Line of each prepayment required under this Section 2.05(b), Credit Loans (i) a certificate signed by a Responsible Officer without reduction of the Borrower setting forth Line of Credit Commitment) until paid in reasonable detail full. Any voluntary prepayments of principal of the calculation of Term Loans made during any year shall reduce, by the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment datevoluntary prepayments, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) required to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained paid by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against Section 2.8(b)(iii) during the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis year immediately subsequent to the then outstanding Term Loans being prepaid irrespective of whether year such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loansvoluntary prepayments were made; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepaymentthat, the amount of required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zero, and no such mandatory prepayment voluntary prepayments shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any reduce payments required to be made by under this Section 2.8(b)(iii) in any year following the year immediately subsequent to the year such voluntary payments were made.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 3.05 and (B) in 2.10, prepay the case Line of Credit Loans and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the applicable aggregate principal amount of the Tranche Line of Credit Loans and L/C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month Obligations then outstanding to the full extent thereof before application amount to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes which the amount Line of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would Credit Commitments have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementreduced.
Appears in 1 contract
Mandatory. (i) In the event [Reserved].
(i) Each prepayment of Loans made pursuant to this Section 2.10(b) shall be made together with any termination of all of the Revolving Credit Commitments, the Borrower shall, on accrued and unpaid interest to the date of such terminationprepayment on the principal amounts prepaid and, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for case of any reason prepayment of a Eurocurrency Rate Loan on a date other than the Total Outstandings last day of an Interest Period or at its maturity, any time exceed the Total Revolving Credit Commitments then in effect, additional amounts which the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize be obligated to reimburse to the L/C Obligations Lenders in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations respect thereof pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect9.04.
(ii) Not No later than three Business Days after the fifth Business Day following date on which the completion financial statements with respect to each fiscal year are required to be delivered pursuant to Section 5.08(b) (commencing with the fiscal year of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andHoldings ending on or about December 31, in each case, the receipt of Net Cash Proceeds resulting therefrom2017), the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto (subject to Section 2.10(b)(ix) below) prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit and Leidos Term Loans in accordance with Section 2.05(b)(vii2.10(b)(vi) in an aggregate principal amount equal to the excess, if any, of (A) the Excess Cash Flow Percentage of Excess Cash Flow for such fiscal year then ended minus (B) any optional prepayments of Term Loans pursuant to Section 2.10(a) and Leidos Loans (but in the case of any Leidos Loans that are Revolving Credit Loans (as defined in the Leidos Credit Agreement) solely to the extent accompanied by a [[NYCORP:3664832v12::08/15/2017--08:07 PM]] corresponding permanent reduction of the Revolving Credit Commitments (as defined in the Leidos Credit Agreement)) pursuant to Section 2.10(a) (or any comparable successor provision) of the Leidos Credit Agreement, in each case made during such fiscal year, or in the immediately following fiscal year but before the making of any prepayment required in respect of such fiscal year pursuant to this Section 2.10(b)(iii), but in each case only to the extent that (i) such prepayments do not occur in connection with a refinancing of all or any portion of such Term Loans or Leidos Loans and (ii) such prepayment was not previously applied to reduce the amount of any prepayment required by this Section 2.10(b)(iii) in respect of a prior fiscal year.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party Holdings or any Subsidiary of a Loan Party the Restricted Subsidiaries shall receive Net Cash Proceeds from the issuance or other incurrence of (A) any Indebtedness for borrowed money of any Loan Party Holdings or any Subsidiary of a Loan Party the Restricted Subsidiaries (other than any cash proceeds from the issuance of Indebtedness for borrowed money permitted pursuant to Section 8.02under each of this Agreement and the Leidos Credit Agreement), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth third Business Day next following) the receipt of such Net Cash Proceeds by Holdings or any such Loan Party or such Restricted Subsidiary, apply an amount equal to the Required Prepayment Percentage 100% of such Net Cash Proceeds to prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit and Leidos Term Loans in accordance with Section 2.05(b)(vii).
2.10(b)(vi) or (vB) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrowerany Refinancing Notes, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)any Specified Refinancing Term Loans or any Refinancing Junior Loans, the Borrower shall prepay an aggregate principal amount of the Class of Term Loans refinanced in such issuance or incurrence by an amount equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(iv) Not later than the third Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale, which proceeds are in excess of $7,500,000 in a single transaction or series of related transactions, the Borrower shall (subject to Section 2.10(b)(ix) below) apply 100% of the Net Cash Proceeds received with respect thereto (the “Subject Proceeds”) to prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit and Leidos Term Loans in accordance with Section 2.05(b)(vii2.10(b)(vi) (collectively, the “Subject Loans”), in and if, at the time that any such prepayment would be required hereunder, the Borrower or any of the Restricted Subsidiaries is required (pursuant to the terms of the documentation governing such other Indebtedness) to repay or repurchase any other Indebtedness (or offer to repay or repurchase such Indebtedness) that is secured pursuant to an intercreditor agreement on a pari passu basis with the Loan Document Obligations with the Subject Proceeds (such Indebtedness required to be so repaid or repurchased (or offered to be repaid or repurchased), the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount equal of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; it being understood that (1) subject to the Required Prepayment Percentage foregoing, the portion of Excess Cash Flow for the fiscal year then ended less Subject Proceeds allocated to the aggregate Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.10(b)(v) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within three Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof. Notwithstanding the foregoing, any prepayments otherwise required to be made pursuant to the above provisions of this clause (v) shall not be required to be made in respect of the first $100,000,000 of Net Cash Proceeds received by the Borrower in respect of Asset Sales after the Closing Date; provided that this sentence shall not apply with respect to any Net Cash Proceeds received by the Borrower in respect an Asset Sale if all Voluntary Prepayments during such fiscal yearor any portion thereof are applied to prepay or repurchase any Leidos Loans and/or any Other Applicable Indebtedness. [[NYCORP:3664832v12::08/15/2017--08:07 PM]]
(v) Mandatory prepayments of outstanding Term Loans under this Section 2.10(b) (other than Section 2.10(b)(iv)(B)) shall be (A) allocated as among the Term Loans and Leidos Term Loans, pro rata, based upon the then outstanding principal amounts of the Term Loans and Leidos Term Loans, and (B) in the case of Term Loans, shall be allocated pro rata among the Term Facilities based upon the then outstanding principal amounts of the Term Loans, and then the applied pro rata to the remaining scheduled installments of principal due in respect of the Term Loans under Section 2.06.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(bSections 2.10(b)(iii), (iv) and (v) above, (i) a certificate signed by a Responsible Financial Officer of the Borrower Holdings setting forth in reasonable detail the calculation of the amount of such prepayment (the “Prepayment Amount”) and (ii) to the extent practicable, at least 10 three Business Days Days’ prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender)prepayment. Each notice of prepayment shall specify the prepayment datedate (the “Prepayment Date”), the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments The Agent shall promptly advise the Appropriate Lenders of Borrowings any notice given (and the contents thereof) pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty2.10(b).
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (ivWith respect to any prepayment of Term Loans pursuant to Section 2.10(b)(iii) and or (v) the Borrower may elect, at its option, to allow the Term Lenders to decline to accept the applicable prepayment. In addition to the notice requirements in Section 2.10(b)(vii), each such notice of this any event giving rise to a prepayment under Section 2.10(b)(iii) or (v) shall also specify whether or not the Borrower has elected to give the Term Lenders the option to decline such prepayment. If the Borrower has elected to allow the Term Lenders to decline to accept such prepayment, any Appropriate Lender may decline to accept all (but not less than all) of its share of any such prepayment (any such Lender, a “Declining Lender”) by providing written notice to the Agent no later than one Business Day after the date of such Appropriate Lender’s receipt of notice from the Agent regarding such prepayment. If any Appropriate Lender does not give a notice to the Agent on or prior to such date informing the Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. On any Prepayment Date, an amount equal to the Prepayment Amount minus the portion thereof allocable to Declining Lenders, in each case for such Prepayment Date, shall be applied: first, paid to prepay outstanding Term Loans on a pro rata basis (the Agent by the Borrower and applied by the Agent in accordance with the respective outstanding principal amounts thereofSection 2.10(b)(vi) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of other than Term Loans so prepaidowing to Declining Lenders), subject . Any amounts that would otherwise have been applied to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there prepay Term Loans owing to Declining Lenders shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used (such amounts, “Declined Spinco Amounts” and together with any Declined Leidos Amounts (as defined in accordance with the provisions of this Leidos Credit Agreement), “Declined Amounts”).
(viii) Mandatory prepayments Notwithstanding any other provisions of outstanding Term Loans under this Agreement shall be applied pro rata against Section 2.10(b), to the remaining scheduled installments of principal due in respect extent that any or all of the Tranche B Term Loans and Tranche C Term Loans Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary (a “Foreign Disposition”) gives rise to a prepayment event pursuant to Section 2.07. Such mandatory prepayments shall be applied on 2.10(b)(v), or Excess Cash Flow giving rise to a pro rata basis prepayment event pursuant to Section 2.10(b)(iii) (solely to the then outstanding Term Loans extent related to Excess Cash Flow generated by Foreign Subsidiaries), are or is prohibited, restricted or delayed by applicable local law from being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of repatriated to the Term Loans as described belowUnited States, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case portion of the applicable principal amount of the Tranche B Term Loans being such Net Cash Proceeds or Excess Cash Flow so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments affected will not be required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans at the times provided in this Section 2.10(b) but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (and Holdings and the Borrower hereby agree to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.10(b) to the extent provided herein and (B) to the extent that Holdings and the Borrower have determined in good faith (and [[NYCORP:3664832v12::08/15/2017--08:07 PM]] after use of commercially reasonable efforts to mitigate any such material adverse tax cost consequences) that repatriation of any or all of the Net Cash Proceeds of any Foreign Disposition, or Excess Cash Flow (solely to the extent related to Excess Cash Flow generated by Foreign Subsidiaries) would have a material adverse tax cost consequence with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause (B), on or before the date on which any Net Cash Proceeds or Excess Cash Flow so retained would otherwise have been required to be used in accordance with applied to prepayments pursuant to this Section 2.10(b), (x) the provisions Borrowers shall apply 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 the Borrower rather than such Foreign Subsidiary, less the amount of this Agreementadditional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Foreign Subsidiary.
Appears in 1 contract
Mandatory. (i) In If the event of Borrower receives any termination of all Net Proceeds from Asset Sales or any Recovery Event, such amounts shall be used to prepay the Loan within five (5) Business Days of the Revolving Credit Commitments, receipt thereof to the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in extent required by Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in 7.08; provided that an aggregate amount equal to such excess; provided, however, that of Net Proceeds from Asset Sales not in excess of $5.0 million from all Asset Sales may be retained by the Borrower and shall not be required to Cash Collateralize be applied to the L/C Obligations repayment of the Loan; provided, further, that any Net Proceeds received from (x) a Weekly Reader Sale shall not be required to be used to prepay the Loan (subject to Section 7.08(a)(iv)) and may be reinvested by the Borrower or any Guarantor in Reinvestment Assets within 180 days of the date of such Weekly Reader Sale so long as any such Net Proceeds that are not so reinvested within such time period shall be used to prepay the Loan on or before the 181st day after such Weekly Reader Sale or (y) any Recovery Event shall not be required to be used to prepay the Loan and may be reinvested by the Borrower or any Guarantor in Reinvestment Assets within 90 days of the date of such Recovery Event so long as any such Net Proceeds that are not so reinvested within such time period shall be used to prepay the Loan (subject to Section 7.08(a)(iv)) on or before the 91st day after such Recovery Event. Any such payment shall be accompanied by payment of the applicable Yield Maintenance Amount required pursuant to Section 2.08. (ii) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to this Section 2.05(b)(i2.04(b) unless after at least three (3) Business Days prior to the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage date of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In prepayment. Each such notice shall specify the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence date of such Specified Equity Issuance prepayment and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of provide a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the reasonably detailed calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the prepayment. The Administrative Agent shall will promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction Lender of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% contents of the aggregate undrawn face amount Borrower’s prepayment notice and of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction Lender’s Pro Rata Share of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreementprepayment.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Unsecured Term Loan Credit and Guarantee Agreement (RDA Holding Co.)
Mandatory. (i) In Subject to the event prior repayment in full of any all Obligations (as defined in the First Lien Facilities Credit Agreement) outstanding under the First Lien Facilities Credit Agreement and the termination of all the Commitments (as defined in the First Lien Facilities Credit Agreement) thereunder or to the extent that any “Lender Party” (as defined in the First Lien Facilities Credit Agreement) under the First Lien Facilities Credit Agreement has waived a mandatory prepayment of the Revolving Debt under the First Lien Facilities Credit Commitments, Agreement which would be required either from “Net Cash Proceeds” (as defined in the First Lien Facilities Credit Agreement) or “Excess Cash Flow” (as defined in the First Lien Facilities Credit Agreement):
(A) the Borrower shall, on or within 10 days following the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit delivery of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be annual audit report 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted be delivered pursuant to Section 8.025.03(b), prepay an aggregate principal amount of the Borrower shall, substantially simultaneously with (and Advances comprising part of the same Borrowings in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to (A) at any time when the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later Leverage Ratio is greater than the earlier of (i) 90 days after the end of each fiscal year of the Borrower4.00:1.00, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage 50% of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment Fiscal Year and (iiB) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount Leverage Ratio is less than or equal to 1054.00:1.00, 25% of the aggregate undrawn face amount of all Excess Cash Flow for such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement Fiscal Year. Each such prepayment shall be applied pro rata against first to the remaining First Lien Term Facility (as defined in the First Lien Facilities Credit Agreement) in direct order to the scheduled principal installments of principal due in respect of the Tranche B Term Loans next succeeding twelve months and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied then on a pro rata basis to any remaining principal installments thereof, second to the then outstanding Term Loans being prepaid irrespective Facility in accordance with the terms thereof and third to the First Lien Revolving Credit Facility (as defined in the First Lien Facilities Credit Agreement).
(B) the Borrower shall, not later than the third Business Day after receipt of whether such outstanding Term Loans are Base Rate Loans any Net Cash Proceeds by any Loan Party or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment any of its Subsidiaries prepay an aggregate principal amount of the Term Loans as described below, then, with respect Advances comprising part of the same Borrowings in an amount equal to such mandatory prepayment, the amount of such mandatory Net Cash Proceeds. Each such prepayment shall be applied first to the First Lien Term Facility (Aas defined in the First Lien Facilities Credit Agreement) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans direct order to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) scheduled principal installments due in the case of the applicable next succeeding twelve months and then on a pro rata basis to any remaining principal amount of the Tranche C Term Loans being so prepaidinstallments thereof, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month second to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used Facility in accordance with the provisions terms thereof and third to the First Lien Revolving Credit Facility (as defined in the First Lien Facilities Credit Agreement).
(C) All prepayments under this subsection (c) shall be made together with accrued interest to the date of such prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 9.04(c).
(D) In lieu of making any prepayment pursuant to this Agreementsubsection (c) in respect of any Eurodollar Rate Advance other than on the last day of the Interest Period therefor, so long as no Event of Default shall have occurred and be continuing, the Borrower at its option may deposit with the Administrative Agent an amount equal to the amount of the Eurodollar Rate Advance to be prepaid and such Eurodollar Rate Advance shall be repaid on the last day of the Interest Period therefor in the required amount. Such deposit shall be held by the Administrative Agent in a corporate time deposit account established on terms reasonably satisfactory to the Administrative Agent, earning interest at the then-customary rate for accounts of such type.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Metrologic Instruments Inc)
Mandatory. (iA) In the event of any termination a payment of all or any portion of the Revolving Credit Commitmentsprincipal on any Mortgage Loan (both scheduled payments or unscheduled mandatory or voluntary prepayments), the Borrower shallshall prepay, on the Interest Payment Date immediately following the date of such terminationrepayment or prepayment, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectwithout premium, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations Loan secured by such Mortgage Loan in an aggregate amount equal to (i) the U.S. Dollar Equivalent of the amount repaid or prepaid, multiplied by (ii) a ratio, the numerator of which is the outstanding principal balance of the Loan secured by such excessMortgage Loan and the denominator of which is the U.S. Dollar Equivalent of the aggregate outstanding principal balances of all Mortgage Loans securing such Loan as determined immediately prior to such repayment or prepayment.
(B) Upon an event of default under any Mortgage Loan, Borrower shall be deemed to have prepaid, without prepayment premium, the Loan secured by such Mortgage Loan in an amount equal to (i) the U.S. Dollar Equivalent of the outstanding principal balance of such defaulted Mortgage Loan, multiplied by (ii) a ratio, the numerator of which is the outstanding principal balance of the Loan secured by such Mortgage Loan and the denominator of which is the U.S. Dollar Equivalent of the aggregate outstanding principal balances of all Mortgage Loans securing such Loan as determined immediately prior to such default, and the outstanding principal balance of such Loan shall be reduced by such amount, and the obligation of Lender, pursuant to the applicable Mortgage Loan Assignment Agreement, to assign any outstanding Mortgage Loans securing such Loan to Borrower upon satisfaction in full of such Loan, shall terminate with respect to such defaulted Mortgage Loan; provided, however, that to 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of extent any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received amounts collected by Lender with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any defaulted Mortgage Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply exceed an amount equal to the Required Prepayment Percentage sum of (i) the amount by which the principal amount of the Loan secured by such defaulted Mortgage Loan was reduced pursuant to this Section, (ii) any interest accrued on such amount at the applicable Interest Rate compounded monthly until the date of collection of such Net Cash Proceeds amounts, and (iii) the amount of any collection expenses (including legal fees), such excess shall be applied against the Excess Loan Amount and any remaining amount shall be remitted to prepay outstanding Loans and/or Cash Collateralize Letters of Credit Borrower.
(C) With respect to each Loan, Borrower shall prepay, without premium, the Excess Loan Amount (if any), in accordance with Section 2.05(b)(vii)1(e) of the applicable Mortgage Loan Assignment Agreement.
(vD) No later than the earlier of (i) 90 days after the end of each fiscal year of the BorrowerOn or prior to December 18, commencing with the fiscal year ending on December 311998, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)prepay, without premium, each Loan in an aggregate principal amount equal to the Required Prepayment Percentage amount by which the outstanding principal balance of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer Loan as of the Borrower setting forth in reasonable detail the calculation Closing Date, exceeded eighty percent (80%) of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% U.S. Dollar Equivalent of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction outstanding principal balances of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Mortgage Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect securing such Loan as of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementClosing Date.
Appears in 1 contract
Sources: Loan Agreement (Nb Capital Corp)
Mandatory. So long as (i) In the commitments in respect of each of the Bridge Facilities have been terminated without the funding of any loans thereunder or (ii) the loans and any accrued interest, fees and other obligations under the Bridge Facilities have been paid in full, in the event of any termination of all of the Revolving Credit Commitments, that the Borrower shallor any of its Subsidiaries receives any Net Cash Proceeds arising from any Debt Issuance, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit the Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations hereunder in an aggregate amount equal to 100% of such excess; provided, however, that Net Cash Proceeds not later than five (5) Business Days following the receipt by the Borrower or such Subsidiary of such Net Cash Proceeds. The Borrower shall promptly (and not later than five (5) Business Days following receipt thereof) notify the Administrative Agent of the receipt by the Borrower or any Subsidiary, as applicable, of such Net Cash Proceeds and such notice shall be required accompanied by a reasonably detailed calculation of the Net Cash Proceeds. Each prepayment of Loans under this clause (b) shall be applied 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 aggregate principal amount and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements accrued but unpaid interest with respect to such period are delivered pursuant the 364-Day Tranche Loans before being applied to Section 7.01(a), prepay the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal and any accrued but unpaid interest with respect to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment 18-Month Tranche Loans and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accompanied by accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject prepaid to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory date fixed for prepayment, the amount of such mandatory prepayment shall be applied (A) plus, in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term any EurodollarTerm Benchmark Loans that are Base Rate Loans prepaid on any day other than the last day of the Interest Period applicable to it, the Borrower shall pay any amounts due to the full extent Lenders as a result thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement2.17.
Appears in 1 contract
Mandatory. (i) In the event of No later than 15 days after any termination of all of the Revolving Credit Commitments, other date on which the Borrower shall, or the Seller becomes aware or is informed by the Administrative Agent that a Borrowing Base Deficit exists on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectdate, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to the Mandatory Payment Amount or take such excess; provided, however, that other corrective actions as may be necessary to cure 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectBorrowing Base Deficit.
(ii) Not later than If after the fifth Business Day following Closing Date the completion of Borrower shall (x) issue any Asset Sale and/or not later than the tenth Business Day following the occurrence of new equity securities or (y) incur or assume any Recovery Permitted Subordinated Debt at a time when an Early Amortization Event and, in each caseis continuing, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or for the account of the Borrower. Promptly upon receipt by the Borrower of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
issuance, incurrence or assumption (iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later other than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness Permitted Subordinated Debt while an Early Amortization Event is not occurring, the proceeds of which the Borrower may put to any Loan Party purpose, including, without limitation the payment of distributions, dividends, or payments to the Seller or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), Person) the Borrower shall, substantially simultaneously with (and shall prepay the Obligations in any event not later than the fifth Business Day next following) the receipt amount of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage Proceeds. Table of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).Contents
(viii) No later than the earlier Each prepayment of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i2.6(b) 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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case payment of the applicable principal amount of to be prepaid (which shall be applied to the Tranche C outstanding Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month until paid in full) and accrued interest thereon to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans date of prepayment together with a longer Interest Period in a manner that minimizes any amounts due the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 8.1.
Appears in 1 contract
Sources: Credit Agreement (American Railcar Industries, Inc.)
Mandatory. (i) In Upon the event incurrence by a Loan Party of any termination Debt for borrowed money other than Debt permitted to be incurred pursuant to Section 5.02(b), not later than two (2) Business Days following the date of all receipt of the Revolving Credit Commitmentsany Net Proceeds thereof, the Borrower shall, on shall make a prepayment of the date Term Loan in an amount equal to 100% of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). Net Proceeds.
(ii) If for any reason the Combined Total Outstandings at any time exceed the Total Revolving Credit Commitments Global Borrowing Base as then in effect, then (A) until the Discharge of ABL Obligations, the Borrower shall immediately prepay all outstanding Revolving Credit first, the ABL Obligations and, then, the Loans (which prepayment shall be applied ratably as between the Term Loan Facility and all outstanding Swing Line the Delayed Draw Term Loan Facility) and (B) thereafter, the Borrower shall immediately prepay the Loans and/or Cash Collateralize (which prepayment shall be applied ratably as between the L/C Obligations Term Loan Facility and the Delayed Draw Term Loan Facility), in each case in an aggregate amount equal to eliminate 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In Within one (1) Business Day following receipt by any Loan Party or any Affiliate thereof of any portion of the event and on each occasion that a Specified Equity Issuance occurs2020 Tax Refund Proceeds, the Borrower shallshall (A) first, substantially simultaneously with make a prepayment of the Delayed Draw Term Loan in an amount equal to the sum (and in any event which shall not later be less than the fifth Business Day next followingzero) of (A) the occurrence lesser of (x) 65% (or 100% if an Event of Default has occurred and continuing) of the amount of the 2020 Tax Refund Proceeds (or portion thereof) so received and (y) the Delayed Draw Term Loan Facility at such time (plus accrued interest thereon and the Early Termination Fee, if any, payable pursuant to Section 2.04 in connection therewith), and (B) second, to the extent the amount of the 2020 Tax Refund Proceeds so received is greater than, minus (B) the aggregate amount of scheduled repayments of the Term Loan that have been made pursuant to Section 2.05(b) after the First Amendment Effect Date and on or prior to the date of such Specified Equity Issuance and prepayment (without duplication of the receipt amount of Net Cash Proceeds resulting therefromtheany such scheduled repayments that reduced any prior prepayment required pursuant to the foregoing clause this Section 2.06(Ab), apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(viiany ABL Obligations then outstanding(iii)).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Each prepayment of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings made pursuant to this Section 2.05 2.06(b) shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained accompanied by the Borrower to be used in accordance with the provisions payment of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans accrued interest to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes date of such payment on the amount of any payments required to be made by the Borrower pursuant to Section 3.05 prepaid and (B) in whether before or after an Event of Default or acceleration, the case of the applicable principal amount of the Tranche C Term Loans being so prepaidEarly Termination Fee, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower if any, payable pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of 2.04 in connection with any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementLoans.
Appears in 1 contract
Mandatory. (i) In Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the event related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) the applicable Excess Cash Flow Percentage of Excess Cash Flow for the fiscal year covered by such financial statements commencing with the fiscal year ending on December 31, 2022, minus (B) the sum of (1) the aggregate amount of voluntary principal prepayments of the Loans and/or voluntary prepayments, redemptions, purchases or similar payment of any termination other Indebtedness secured by Liens on the Collateral ranking equal in priority (but without regard to the control of remedies) with the Liens on the Collateral securing the Obligations (including prepayments, redemptions, purchases or similar payments at a discount to par, with credit given to the aggregate principal amount of Indebtedness prepaid, redeemed, purchased, retired or reduced), but in each case excluding prepayments, redemptions, purchases or similar payments funded with the proceeds of Specified Refinancing Debt, Refinancing Notes, Credit Agreement Refinancing Indebtedness or any other long-term Indebtedness, and in the case of any prepayment of Revolving Loans, only to the extent that Revolving Commitments are permanently reduced in the same amount of such prepayments), (2) all Applicable ECF Credits and (3) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii), in each case during such fiscal year or after year-end and prior to the time such prepayment pursuant to this Section 2.05(b) is due and (C) without duplication, to the extent that the amount of payments described in clauses (B)(1) through (3) above would exceed the amount calculated pursuant to clause (A) above for any fiscal year, the amount of such excess shall, at the Borrower’s option, be carried forward to the next fiscal year (and not any subsequent filed year) and be used as a credit against the amount calculated pursuant to clause (A) above in such fiscal year (any payments described in the foregoing clauses (1) through (3) of this clause (B) made after the end of the applicable fiscal year but prior to the time such prepayment pursuant to this Section 2.05(b) is due in respect of such fiscal year, an “After Year End Payment”; provided further that the Borrower may use a portion of Excess Cash Flow to prepay any other Indebtedness that is secured by Liens or the Collateral that rank on an equal priority basis (but without regard to the control of remedies) with Liens or the Collateral securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment thereof with the Excess Cash Flow in an amount not to exceed the product of (1) the amount of such Excess Cash Flow and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I), provided, that, no prepayment shall be required with respect to any Excess Cash Flow Period to the extent Excess Cash Flow for such period is less than $25.0 million.
(ii) If (x) any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in the receipt by the Borrower or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $25.0 million or (y) the aggregate Net Cash Proceeds received by the Borrower and the Restricted Subsidiaries from all Asset Sales and Casualty Events not described in clause (x) above exceeds $100.0 million in any fiscal year (any such transaction or series of related transactions referred to in clauses (x) and each such transaction referred to in clause (y) if the threshold therein is exceeded (effective with respect to each such transaction under clause (y) in a fiscal year only upon the later of the date of consummation thereof and the date such threshold is first exceeded) being a “Relevant Transaction”), then, except to the extent that the Borrower elects to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(viii), an aggregate principal amount of Term Loans in an amount equal to the Applicable Asset Sale Percentage of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or, in the case of clause (y) above, within 15 Business Days after the later of the date the threshold therein is first exceeded and the date the relevant Net Cash Proceeds are received) by the Borrower or such Restricted Subsidiary (any Net Cash Proceeds not required to be prepaid pursuant to this Section 2.5(b)(ii) in reliance on this sentence (i.e. such 50% or 100%) shall constitute “Total Leverage Excess Proceeds”); provided that the Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay, redeem, purchase or make a similar payment in respect of any other Indebtedness that is secured by Liens or the Collateral that rank on an equal priority basis (but without regard to the control of remedies) with Liens or the Collateral securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment, redemption, purchase or similar payment thereof with the proceeds of such Relevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided, further that only the amount of Net Cash Proceeds in excess of $25.0 million for any Asset Sale or Casualty Event (under clause (x) above) or $100.0 million in any fiscal year (under clause (y) above) shall be subject to prepayment pursuant to this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by the Borrower or any Restricted Subsidiary of any New Term Loan Commitments Incurred to refinance Term Loans, Refinancing Notes, any Specified Refinancing Term Loans, any Credit Agreement Refinancing Indebtedness in respect of Term Loans or any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.01, the Borrower shall prepay an aggregate principal amount of applicable Term Loan Tranche or Tranches in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary in accordance with the provisions of Section 2.05(b)(vi).
(iv) Upon the incurrence by the Borrower or any Restricted Subsidiary of any Specified Refinancing Debt constituting revolving credit facilities, the Borrower shall prepay an aggregate principal amount of Revolving Credit Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(v) If, for any reason, the sum of the Total Revolving Credit Outstandings or the sum of outstanding Specified Refinancing Revolving Loans at any time exceed the sum of the Revolving Tranche in respect thereof (including after giving effect to any reduction in the Revolving Credit CommitmentsCommitments pursuant to Section 2.06), the Borrower shall, on shall immediately prepay the date of such termination, repay or prepay all outstanding applicable Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit Tranche and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations related thereto in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.05(b)(v) unless after the prepayment in full of the applicable Revolving Loans and Swing Line Loans Tranche the Total Outstandings exceed sum of the Total Revolving Credit Outstandings or the outstanding Specified Refinancing Revolving Loans, as the case may be, exceed the aggregate Revolving Credit Commitments or the commitments to make Specified Refinancing Revolving Loans, as the case may be, then in effect.
(iivi) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant Subject to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 20072.17, and (ii) the date on which the financial statements except with respect to such period are delivered pursuant any New Loan Commitments intended to Section 7.01(arefinance any Term Loans, Refinancing Notes, any Specified Refinancing Term Loans, any Credit Agreement Refinancing Indebtedness in respect of Term Loans which shall be applied to the applicable Term Loan Tranche that is being refinanced (as directed by the Borrower), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Term Loans pursuant to this Section 2.05 2.05(b) shall be subject applied to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding each Term Loans Loan Tranche on a pro rata basis (or, if agreed to in accordance writing by the Majority Lenders of a Term Loan Tranche, in a manner that provides for more favorable prepayment treatment of other Term Loan Tranches, so long as each other such Term Loan Tranche receives its Pro Rata Share of any amount to be applied more favorably, except to the extent otherwise agreed by the Majority Lenders of each Term Loan Tranche receiving less than such Pro Rata Share) (other than a prepayment of (x) Term Loans or Revolving Credit Loans, as applicable, with the respective outstanding principal amounts thereof) proceeds of Indebtedness incurred pursuant to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)Section 2.18, subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement which shall be applied pro rata against to the Term Loan Tranche or Revolving Tranche, as applicable, being refinanced pursuant thereto or (y) Term Loans with the proceeds of any New Loan Commitments, Refinancing Notes, Specified Refinancing Debt or Credit Agreement Refinancing Indebtedness Incurred to the extent permitted under Section 7.01(a), which shall be applied to the Term Loan Tranche being refinanced pursuant thereto). Amounts to be applied to a Term Loan Tranche in connection with prepayments made pursuant to this Section 2.05(b) shall be applied to the remaining scheduled installments with respect to such Term Loan Tranche in direct order of principal due in respect maturity. Each prepayment of the Tranche B Term Loans and Tranche C Term Loans under a Facility pursuant to this Section 2.07. Such mandatory prepayments 2.05(b) shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or and Eurocurrency Rate LoansLoans under such Facility; provided that that, if there are no Declining Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, then the amount of such mandatory prepayment thereof shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans under such Facility to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans Loans, in each case in a manner that minimizes the amount payable by the Borrower in respect of such prepayment pursuant to Section 3.06.
(vii) All prepayments under this Section 2.05 shall be made together with, in the case of any payments such prepayment of a Eurocurrency Rate Loan on a date other than the last day of an Interest Period therefor, any amounts owing in respect of such Eurocurrency Rate Loan pursuant to Section 3.06 and, to the extent applicable, any additional amounts required pursuant to Section 2.05(a)(iii). Notwithstanding any of the other provisions of this Section 2.05(b), so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Rate Loans is required to be made by under this Section 2.05(b), other than on the last day of the Interest Period therefor, the Borrower pursuant to Section 3.05 and (B) may, in the case of the applicable principal amount of the Tranche C Term Loans being so prepaidtheir sole discretion, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes deposit the amount of any payments such prepayment otherwise required to be made by thereunder into a Cash Collateral account until the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrarylast day of such Interest Period, any Term Loan Lender may elect, by notice to at which time the Administrative Agent shall be authorized (without any further action by facsimile at least eight Business Days prior or notice to or from the Borrower or any other Loan Party) to apply such amount to the applicable prepayment date, to decline all of any prepayment of its Term such Loans pursuant in accordance with this Section 2.05(b) (it being agreed, for clarity, that interest shall continue to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case accrue on the aggregate Loans so prepaid until the amount of the prepayment that would have been so deposited is actually applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepaymentLoans). In Upon the event occurrence and during the continuance of such a re-offerany Event of Default, the relevant Lenders may elect, by notice to the Administrative Agent shall also be authorized (without any further action by facsimile within two Business Days or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of receiving notification the outstanding Loans in accordance with this Section 2.05(b).
(viii) Notwithstanding any other provisions of such re-offerthis Section 2.05, to decline the extent that any or all of the amount Net Cash Proceeds of any Asset Sale by a Non-Guarantor Subsidiary (a “Non-Guarantor Disposition”) or the Net Cash Proceeds of any Casualty Event from a Non-Guarantor Subsidiary (a “Non-Guarantor Casualty Event”), in each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) are or is prohibited, restricted or delayed by applicable local law, rule or regulation (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) from being repatriated to the United States, the portion of such prepayment that is re-offered Net Cash Proceeds or Excess Cash Flow so affected will not be required to them, in which case the aggregate amount of the prepayment that would have been be applied to prepay such repay Term Loans pursuant to such re-offer at the times provided in this Section 2.05 but was so declined may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable law, rule or regulation (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) will not permit repatriation to the United States (the Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, rule or regulation (including financial assistance and corporate benefit restrictions and statutory duties of the relevant directors) such repatriation will be used immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in accordance with 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 pursuant to this Section 2.05 to the extent provided herein.
(ix) Notwithstanding any other provisions of this Agreement.Section 2.05, to the extent that the Borrower has determined in good faith that repatriation of any or all of the Net Cash Proceeds of any Non-Guarantor Disposition or any Non-Guarantor Casualty Event, in each case giving rise to a prepayment event pursuant to Section 2.05(b)(ii), or Excess Cash Flow giving rise to a prepayment event pursuant to Section 2.05(b)(i) would have an adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Non-Guarantor Subsidiary; provided that, on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.05 (or twelve months after the date such Excess Cash Flow would have been so required to be applied if it were Net Cash Proceeds), (x) the Borrower shall apply an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flo
Appears in 1 contract
Sources: Credit Agreement (PPD, Inc.)
Mandatory. (i) In Within ninety (90) days after the event end of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established each Fiscal Year commencing with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectFiscal Year ending December 31, 2008, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount of Senior Debt equal to 50% of Excess Cash Flow for such excessFiscal Year; provided, however with respect to Fiscal Year 2008, Excess Cash Flow shall be computed for the period commencing with the Commitment Effective Date through the last day of such Fiscal Year; and further provided, however, that if the Total Leverage Ratio as of the last day of such Fiscal Year is less than 2.0 to 1.0, then the Borrower shall not be required to Cash Collateralize the L/C Obligations make a prepayment pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectfor such Fiscal Year.
(ii) Not later than the fifth Business Day following the completion If any Loan Party or any of its Subsidiaries disposes of any property in connection with an Asset Sale and/or not later than Disposition which results in the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt realization by such Person of Net Cash Proceeds resulting therefromProceeds, the Borrower shall apply the Required Prepayment Percentage prepay an aggregate principal amount of Senior Debt equal to 100% of such Net Cash Proceeds received immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vii) and (ix) below); provided, however, that, with respect thereto to prepay outstanding any Net Cash Proceeds realized under an Asset Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Asset Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets performing the same or a similar function or otherwise used in the business of such Loan Party or such Subsidiary so long as within 180 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not so reinvested (or subject to a definitive agreement to be reinvested) shall be immediately applied to the prepayment of the Loans and/or Cash Collateralize Letters as set forth in this Section 2.05(b)(ii) immediately upon the earlier of Credit in accordance with Section 2.05(b)(vii)the occurrence of a Default or the expiration of such 180 day period.
(iii) In Upon the event and on each occasion that sale or issuance by any Loan Party or any of its Subsidiaries of any of its Capital Securities (other than any sales or issuances of Capital Securities to another Loan Party or in connection with a Specified Equity Issuance occursPermitted Acquisition) or the exercise by any Person of any convertible Capital Securities issued by a Loan Party (other than the Warrants), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence shall prepay an aggregate principal amount of such Specified Equity Issuance and the receipt Senior Debt equal to 100% of all Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of received therefrom immediately upon receipt thereof by such Net Cash Proceeds therefrom Loan Party or such Subsidiary (such prepayments to prepay outstanding Loans and/or Cash Collateralize Letters of Credit be applied as set forth in accordance with Section 2.05(b)(viiclauses (vii) and (ix) below).
(iv) In Upon the event that incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt permitted under Sections 7.01 (a) – (i) and (k)), the Borrower shall prepay an aggregate principal amount of Senior Debt equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vii) and (ix) below).
(v) Immediately upon the receipt by any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance exercise of any Warrants, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to (A) 100% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is equal to or other incurrence greater than 2.50:1.0, (B) 75% of Indebtedness such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.50:1.0 but equal to or greater than 2.0:1.0 and (C) 50% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.0:1.0 but equal to or greater than 1.50:1.0; provided, however, that if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 1.50:1.0, then the Borrower shall not be required to make a prepayment pursuant to this Section 2.05(b)(v).
(vi) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007its Subsidiaries, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit not otherwise included in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs clauses (ii), (iii), (iv) or (v) of this SectionSection 2.05(b), in which case the Borrower shall prepay an aggregate principal amount of the prepayment that would have been applied Senior Debt equal to prepay 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted Party or such prepayment Subsidiary (such re-offer prepayments to be made applied as set forth in clauses (vii) and (ix) below); provided, however, that with respect to each such Term Loan Lender based on any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the percentage which such Term Loan Lender’s Term Loans represents election of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In Borrower (as notified by the event of such a re-offer, the relevant Lenders may elect, by notice Borrower to the Administrative Agent by facsimile within two Business Days on or prior to the date of receiving notification receipt of such re-offerinsurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 180 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(v).
(vii) Each prepayment of Senior Debt pursuant to the foregoing provisions of this Section 2.05(b) shall be applied to the outstanding Loans; provided, however, the Borrower shall offer to prepay a Ratable Portion of the Private Placement Notes with any such prepayment amount pursuant to the terms of the Private Placement Note Purchase Agreement and, to decline all the extent accepted by the Private Placement Noteholders, prepay the applicable Private Placement Notes so long as at least a Ratable Portion of the amount outstanding Loans is prepaid contemporaneously with such prepayment of Private Placement Notes; in each case accompanied by a certificate of a Responsible Officer of the Borrower demonstrating the calculation of such prepayment that is re-offered amount and applied, first, to themthe Term A Loan and the Term B Loan (ratably to the remaining principal amortization payments) and, second, to the Revolving Credit Facility in the manner set forth in clause (ix) of this Section 2.05(b).
(viii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(ix) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in which the case the aggregate amount of prepayments of the prepayment that would have been applied to prepay such Term Loans Revolving Credit Facility required pursuant to clause (i), (ii), (iii), (iv) or (v) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such re-offer but was so declined time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(iv). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to be used in accordance with or from the provisions of this AgreementBorrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) In On any date (A) on which a cash equity contribution is deposited in the event Borrower Collateral Account as a result of a loan made by First Gibraltar to the Borrower Parent pursuant to the terms of the First Gibraltar Loan Agreement or on which a deposit of amounts paid under or in connection with any termination Related Documents is made to the Mafco Collateral Account or on which a deposit of all amounts constituting Net Cash Proceeds from an Asset Sale is made to the Mafco Collateral Account and (B) either (I) a Default has occurred and is continuing, (II) the Borrower fails to deliver a Look-Forward Certificate or a Deposit Certificate with respect to such deposit in accordance with the terms of section 5.01(k) or (III) the Mafco Finance Required Lenders determine, in their reasonable discretion, within 15 Business Days following the date of the receipt of the Look-Forward Certificate or within 2 Business Days following the date of the receipt of Deposit Certificate, as the case may be, referred to in clause (B)(II), that the pro forma amounts available to be loaned by First Gibraltar to Borrower Parent, together with amounts received by Mafco pursuant to or in connection with any Related Document, will be less than $15 million in any calendar quarter (of which at least $10 million shall be from amounts available to be loaned by First Gibraltar to the Borrower Parent) or will not be sufficient to pay interest on the Advances then outstanding and interest on the Debt then outstanding under the Term Credit Agreement, the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans Facility shall be automatically and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in permanently reduced by an aggregate amount equal to the excess of (x) the amount of such excess; providedcash equity contribution or the amount on deposit in the Mafco Collateral Account, howeveras the case may be, that plus any interest on Collateral Investments made with such contribution or deposit over (y) the Borrower shall not be required sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to Cash Collateralize the L/C Obligations Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facility) from such cash equity contribution or such amount on deposit in the Mafco Collateral Account, as the case may be, or from any interest on Collateral Investments made with such contribution or deposit pursuant to this the terms of Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans Term Credit Agreement. Each such reduction shall be applied ratably to the Total Outstandings exceed the Total Revolving Credit Commitments then Facility and shall be made ratably among the Lenders in effectaccordance with their Revolving Credit Commitments.
(ii) Not later The Revolving Credit Facility shall be automatically and permanently reduced:
(A) on the date of receipt by any A Company of the Net Cash Proceeds of issuances, sales or liquidations of any capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock) of any A Company (other than the fifth Business Day following the completion any Net Cash Proceeds in respect of any Asset Sale and/or not later than Sale),
(B) on the tenth Business Day following the occurrence date of receipt by any A Company of any Recovery Event dividends, other distributions or any loans or advances made in respect of the capital stock of any other A Company (other than FN Holdings and FN Parent) or any Designated Operating Company (provided that this clause (B) shall not apply (1) to the dividend made by MCG in accordance with the public announcements made prior to the date hereof and (2) to the receipt by any A Company of any dividends, other distributions or any loans or advances made in respect of all or any portion of the proceeds received by Mafco or any of its Subsidiaries from any Asset Sale or any sale, lease, transfer or other disposition specified in clauses (i) through (iv) of the definition of "Asset Sale"),
(C) on the date of receipt by any A Company of the proceeds of distributions, dividends or any loans or advances made on account of or as a result of the issuance, sale or liquidation of any capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock but excluding any Asset Sale) of, or the sale, issuance or incurrence of any Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash Proceeds from the sale, issuance or incurrence by any A Company of any Debt (other than any sale, issuance or incurrence by Revlon Holdings Inc. of any Debt to any of its Subsidiaries), by an amount equal to the excess of (x) the amount so received (except, in each case, to the extent (1) required pursuant to the terms of any agreement or instruments relating to Debt existing on the date hereof or otherwise approved by the Mafco Finance Required Lenders of any A Company or Designated Operating Company to prepay or redeem or purchase such Debt or (2) prohibited to be so applied by the terms of any agreement or instrument relating to Debt existing on the date hereof or otherwise approved by the Mafco Finance Required Lenders of any A Company or Designated Operating Company) over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facility) from the amounts so received pursuant to the terms of Section 2.05(b)(ii) of the Term Credit Agreement. Each such reduction shall be applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with their Revolving Credit Commitments.
(iii) On the date of receipt by Mafco or any of its Subsidiaries (other than the Bank and its Subsidiaries) of the Net Cash Proceeds resulting therefromfrom the sale, transfer or other disposition of (x) all or any portion of the capital stock of the Bank (other than any issuance by the Bank or any Subsidiary of the Bank of capital stock) or (y) any asset of the Bank, the Borrower Revolving Credit Facility shall apply be automatically and permanently reduced by an amount equal to the Required Prepayment Percentage excess of (A) such Net Cash Proceeds (other than the portion of such Net Cash Proceeds received with respect thereto required to prepay outstanding Loans and/or Cash Collateralize Letters be paid to the holders of Credit in accordance with Section 2.05(b)(vii).
the Class B common stock of FN Holdings and the holders of the FN Holdings Preferred Stock) over (iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next followingB) the occurrence sum of such Specified Equity Issuance the amount of interest and fees then due and payable in respect of the receipt Facilities plus the amount of Net Cash Proceeds resulting therefromexpenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, apply fees and expenses then due and payable in respect of the Required Prepayment Percentage of Term Facility) from such Net Cash Proceeds therefrom pursuant to prepay outstanding Loans and/or Cash Collateralize Letters the terms of Section 2.05(b)(iii) of the Term Credit Agreement. Each such reduction shall be applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with Section 2.05(b)(vii)their Revolving Credit Commitments.
(iv) In On and after the event that any Loan Party or any Subsidiary of a Loan Party shall receive date on which Mafco and its Subsidiaries have received Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage Asset Sale Threshold from Asset Sales, upon any Asset Sale in respect of which Mafco and its Subsidiaries have received Net Cash Proceeds (which, together with the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales, exceeds the Asset Sale Threshold), the Revolving Credit Facility shall be automatically and permanently reduced by an amount equal to the excess of (x) the sum of (A) 50% of that portion of the Net Cash Proceeds (up to $150 million) in excess of the Asset Sale Threshold (after taking into account the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales) from such Asset Sale plus (B) 100% of that portion of the Net Cash Proceeds from such Asset Sale in excess of the sum of the Asset Sale Threshold plus $150 million (after taking into account the aggregate amount of Net Cash Proceeds from and after the Effective Date from Asset Sales) over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facility) from such Net Cash Proceeds pursuant to prepay outstanding Loans and/or Cash Collateralize Letters the terms of Section 2.05(b)(iv) of the Term Credit Agreement. Each such reduction shall be applied ratably to the Revolving Credit Facility and shall be made ratably among the Lenders in accordance with Section 2.05(b)(vii)their Revolving Credit Commitments.
(v) No later than the earlier On each date that an Event of (iDefault set forth in Section 6.01(a) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, shall have occurred and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)be continuing, the Borrower Revolving Credit Facility shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in be automatically and permanently reduced by an aggregate principal amount equal to the Required Prepayment Percentage excess of Excess Cash Flow for (x) the fiscal year then ended less amount on deposit in the aggregate Second Mafco Collateral Account over (y) the sum of the amount of all Voluntary Prepayments during such fiscal year.
interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (vi) The Borrower shall deliver including the reasonable fees and expenses of counsel to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of then due and payable. Each such prepayment and (ii) reduction shall be applied ratably to the extent practicable, at least 10 Business Days prior written notice of such prepayment (Revolving Credit Facility and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (made ratably among the Lenders in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the their Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of . Any amounts remaining on deposit in the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of Second Mafco Collateral Account after the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement foregoing application shall be applied pro rata against the remaining scheduled installments of principal due as set forth in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii2.05(b)(v), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Revolving Credit Agreement (Andrews Group Inc /De/)
Mandatory. (i) In Promptly upon receipt by the event Borrower or any of its Subsidiaries of the Net Cash Proceeds received from the Disposition of any termination assets other than Excluded Assets and Reinvestment Assets:
(A) if the asset which is Disposed of all is the Miami Property, 100% of the Revolving Credit Commitments, Net Cash Proceeds therefrom shall be applied by the Borrower shall, on to prepay the date Loans (such prepayment to be applied as set forth below);
(B) the first $10,000,000 of such termination, repay or Net Cash Proceeds in each calendar year (disregarding any amounts derived pursuant to (A) above) shall be applied by the Borrower to prepay all outstanding Revolving Credit the Loans and all outstanding Swing Line Loans and replace all outstanding Letters (such prepayment to be applied as set forth below); and
(C) the remaining amount of Credit and/or such Net Cash Collateralize the L/C Obligations in a cash collateral account established Proceeds shall be shared ratably with the Collateral Agent Senior Secured Notes to the extent required pursuant to the Intercreditor Agreement and the Senior Secured Note Documents, and the portion of such remaining amount available for distribution hereunder shall be applied by the benefit of Borrower to prepay the Secured Parties in the manner described in Section 2.03(gLoans (such prepayment to be applied as set forth below). If for Notwithstanding the foregoing, if any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be prepayment required to Cash Collateralize the L/C Obligations pursuant to under this Section 2.05(b)(i) unless after would require the Borrower to prepay Revolving Credit Loans on a day other than the last day of an Interest Period and such prepayment would require the Borrower to compensate the Lenders under Section 3.05 by reason of such prepayment, then the Borrower may delay making the prepayment in full until the last day of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectapplicable Interest Period.
(ii) Not later than the fifth Within five (5) Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days Days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are have been delivered pursuant to Section 7.01(a6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), except with respect to the Borrower’s fiscal year ended December 27, 2009, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount of Loans in an amount equal to the Required Prepayment Percentage (A) 75% of Excess Cash Flow for the fiscal year then ended covered by such financial statements (such prepayment to be applied as set forth below), less (B) for the aggregate prepayment related to fiscal year 2010, the amount actually paid pursuant to Section 2.06(b)(i); provided, however, that the amount of such prepayment shall not be less than an amount equal to 50% of Excess Cash Flow for the fiscal year covered by such financial statements.
(iii) On the dates specified in clauses (A) and (B) of Section 2.06(b)(i), the Borrower shall prepay an amount sufficient to cause the Total Revolving Credit Outstandings to be less than or equal to the Revolving Credit Facility as reduced in accordance therewith.
(iv) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than Excluded Issuances and any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of Loans equal to 75% of all Voluntary Prepayments during Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such fiscal yearSubsidiary (such prepayments to be applied as set forth below).
(v) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth below).
(vi) The Upon the incurrence or issuance by the Borrower of any Indebtedness permitted to be incurred or issued pursuant to Section 7.02(l), the Borrower shall deliver utilize the Net Cash Proceeds therefrom to prepay the outstanding principal amount of all Loans owed to the Administrative AgentClass A Lenders or the Class B Lenders, at as designated by the time Borrower, and whose Commitments shall have been reduced pursuant to Section 2.06(b)(iii).
(vii) Except as set forth in clause (vi) above or clause (x) below, repayments of each prepayment required under the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (i) a certificate signed without any further action by a Responsible Officer of or notice to or from the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (iior any other Loan Party) to reimburse the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (L/C Issuer or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and thirdLenders, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreementapplicable.
(viii) Mandatory prepayments Each prepayment of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments 2.05(b)(i), Section 2.05(b)(ii), Section 2.05(b)(iv), Section 2.05(b)(v) or Section 7.03(vi) shall be applied on a pro rata basis ratably to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of A Facility and to the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied Revolving Credit Facility (A) in the case of the Revolving Credit Facility, in the manner set forth in clause (vii) of this Section 2.05(b)), and to each applicable Lender in accordance with its Applicable Percentage.
(ix) The Borrower acknowledges and agrees to be bound by the mandatory prepayment obligation set forth in Section 2.01(c)(i), and to prepay the outstanding Revolving Credit Loans in an amount sufficient to reduce the outstanding principal amount thereof to an amount not in excess of the Revolving Credit Facility (and sufficient to ensure that each Class A Revolving Lender’s Applicable Percentage thereof is not in excess of its Class A Revolving Credit Commitment), as a result of the commitment reductions in Sections 2.06(b)(ii) and (iii), such prepayment to be made on the date of such reduction.
(x) The Borrower shall utilize (A) an amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans Net Cash Proceeds from the issuance of the Senior Secured Notes equal to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount Permitted Tender Carry-Forward Limit, plus (B) 50% of any remaining Net Cash Proceeds from the issuance of the Senior Secured Notes, after the payments and reductions set forth in Section 2.06(b)(ii), to repay the outstanding Revolving Credit Loans of the Revolving Credit Lenders in accordance with their Applicable Percentage; provided that such repayments shall be required to be made by only to the Borrower pursuant extent required to Section 3.05 reduce the outstanding amounts thereof to zero, and (B) shall be applied in the case of the applicable principal amount of the Tranche C Term Loans being so prepaidfollowing order: first, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month ratably to the full extent thereof before application to Tranche L/C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes Borrowings and the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein Swing Line Loans, and second, ratably to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementoutstanding Revolving Credit Loans.
Appears in 1 contract
Sources: Credit Agreement (McClatchy Co)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, If the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Subsidiary shall at any time exceed or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Total Revolving Credit Commitments then Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in effectrespect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such excessNet Cash Proceeds; provided, howeverin the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to make a mandatory prepayment under this Section 2.05(b)(i) unless in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving of Credit Commitments then Commitments) until paid in effectfull.
(ii) Not later If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the fifth exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business Day following in connection with an Acquisition permitted by the completion of terms hereof, if any) or incur any Asset Sale and/or not later Indebtedness other than the tenth Business Day following the occurrence of any Recovery Event and, in each casethat permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds resulting therefrom, of such issuance or incurrence the Borrower shall apply prepay the Required Prepayment Percentage Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of Indebtedness any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any Loan Party reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any Subsidiary other terms of a Loan Party this Agreement.
(other than Indebtedness permitted iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 8.02)6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall, substantially simultaneously with (and in any event not later than shall prepay the fifth Business Day next following) the receipt of such Net Cash Proceeds then-outstanding Loans by such Loan Party or such Subsidiary, apply an amount equal to (x) the Required Prepayment applicable ECF Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than for the earlier of (i) 90 days after the end of each most recently completed fiscal year of the Borrower, commencing with multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 20072013, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less period commencing on the aggregate amount first day of all Voluntary Prepayments during the first month following the Restatement Effective Date through the end of such fiscal year.
(vi) . The Borrower amount of each such prepayment shall deliver be applied first to the Administrative Agent, at outstanding Term Loans until paid in full and then to the time Line of each prepayment required under this Section 2.05(b), Credit Loans (i) a certificate signed by a Responsible Officer without reduction of the Borrower setting forth Line of Credit Commitment) until paid in reasonable detail full. Any voluntary prepayments of principal of the calculation of Term Loans made during any year shall reduce, by the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment datevoluntary prepayments, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) required to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained paid by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against Section 2.8(b)(iii) during the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis year immediately subsequent to the then outstanding Term Loans being prepaid irrespective of whether year such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loansvoluntary prepayments were made; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepaymentthat, the amount of required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zero, and no such mandatory prepayment voluntary prepayments shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any reduce payments required to be made by under this Section 2.8(b)(iii) in any year following the year immediately subsequent to the year such voluntary payments were made.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 3.05 and (B) in 2.10, prepay the case Line of Credit Loans and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the applicable aggregate principal amount of the Tranche Line of Credit Loans and L/C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month Obligations then outstanding to the full extent thereof before application amount to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes which the amount Line of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would Credit Commitments have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementreduced.
Appears in 1 contract
Sources: Credit Agreement (Granite City Food & Brewery Ltd.)
Mandatory. (i) a. In the event of any termination of all any Tranche of the Revolving Credit Commitments, the Borrower Borrowers shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans of such Tranche and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Dollar Equivalent of the Outstanding Amount of Revolving Credit Loans of any Tranche of Revolving Credit Commitments at any time exceed exceeds the Total Dollar Equivalent of the amount of Revolving Credit Commitments of such Tranche then in effect, the Borrower Borrowers shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans of such Tranche and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless unless, after the prepayment in full of the Revolving Credit Loans and Swing Line Loans of the applicable Tranche, the Dollar Equivalent of the Total Outstandings exceed exceeds the Dollar Equivalent of the Total Revolving Credit Commitments then in effect. Mandatory prepayments of any Tranche of Revolving Credit Loans shall be made on a pro rata basis among the outstanding Revolving Credit Loans of such Tranche.
(ii) b. Not later than the fifth Business Day following the completion of any Asset Sale or Permitted Sale Leaseback Transaction and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefromtherefrom by any Loan Party or any Restricted Subsidiary, the Borrower Holdings shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(vi); provided that such prepayment shall only be required under this clause (ii) if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) c. In the event that any Loan Party or any Restricted Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of any Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness Restricted Subsidiary, in each case, that is not permitted pursuant to Section 8.02), the Borrower Borrowers shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party Borrower or such Restricted Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(vi).
(v) No d. Commencing with the fiscal year ending on December 31, 2020, no later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)Holdings, the Borrower Borrowers shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii2.05(b)(vi), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year; provided that such prepayment shall only be required under this clause (iv) if the net amount required to be prepaid in any fiscal year is greater than or equal to $25,000,000.
(vi) The Borrower e. Holdings shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower Borrowers setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 three Business Days prior written notice of such any prepayment pursuant to Section 2.05(b)(i) and at least ten Business Days prior written notice of any prepayment pursuant to Section 2.05(b)(ii), (and iii) or (iv) (and, in each case, the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall be substantially in the form of Exhibit H and shall specify the prepayment date, the Class Class, Tranche and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 2.05(b) shall be subject to Section 3.05, but shall otherwise be without premium or penaltypenalty (except for Section 2.05(b)(iii) to the extent set forth in Section 2.05(a)(iv)).
(vii) f. Mandatory prepayments under sub-paragraphs (iiSections 2.05(b)(ii), (iii), ) and (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viiivii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Credit Loans on a pro rata basis among the relevant Tranches of Revolving Credit Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Credit Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105103% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower Borrowers to be used in accordance with the provisions of this Agreement.
(viii) g. Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of such Tranche of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower Borrowers pursuant to Section 3.05. Notwithstanding anything set forth herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (iiSection 2.05(b)(ii), (iii), (iv) or (v) of this Sectioniv), in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower Borrowers (such retained amounts, the “Retained Declined Proceeds”) to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (APi Group Corp)
Mandatory. (i) In If any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $250,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then (x) Borrower Representative shall promptly notify the Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within five (5) Business Days) upon receipt by any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $250,000; provided that in the case of each Disposition and Event of Loss, if Borrower Representative states in its notice of such event that the applicable Credit Party or Subsidiary intends to invest or reinvest, as applicable, within one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, Borrowers shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested or (y) committed to be invested or reinvested, in each case as described in Borrower Representative’s notice with such 180-day period. Promptly after the end of such 180-day period, Borrower Representative shall notify the Agent whether such Credit Party or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in Borrower Representative’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) the Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Second Restatement Closing Date any Credit Party or any Subsidiary shall issue any new equity securities (other than (a) equity securities issued in connection with the exercise of employee stock options, (b) equity securities issued in connection with the exercise of the Cure Right, (c) equity securities issued by a Subsidiary to another Credit Party, (d) equity securities sold to management and/or any employees of any termination Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness (other than that permitted by Section 6.11 hereof), then in each such case Borrower Representative shall promptly notify the Agent of all the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received by or for the account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) Business Days) upon receipt by such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) the Revolving Loans, Swing Loans and Reimbursement Obligations. Each Credit Party acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) No later than five (5) Business Days after the earlier of (a) receipt by Agent of the audited financial statements required by Section 6.1(c) hereof and (b) the due date of the delivery of the audited financial statements required by Section 6.1(c) hereof, beginning with the fiscal year ending June 30, 2017, Borrowers shall prepay the then-outstanding Loans by an amount equal to 50% of Excess Cash Flow of Credit Parties and their Subsidiaries for the most recently completed fiscal year of Credit Parties; provided, however, that if the Senior Leverage Ratio (determined as of the last day of any applicable fiscal year by reference to the financial statements delivered pursuant to Section 6.1(c) for such fiscal year) is less than 1.00:1.00, Borrowers shall not be required to make a prepayment of Excess Cash Flow for such fiscal year. The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof) and then to the Revolving Loans until paid in full, and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) any Overadvances, Swing Loans, Reimbursement Obligations, without any reduction in commitments. Any voluntary prepayments of principal of the Term Loans and, solely to the extent accompanied by a permanent reduction on commitments, the Revolving Loans, made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by Borrowers under this Section 2.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were made; provided that, the amount required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required to be made under this Section 2.8(b)(iii) in any year following the year immediately subsequent to the year such voluntary payments were made.
(iv) Borrowers shall, (A) on each date the Revolving Credit CommitmentsCommitments are reduced pursuant to Section 2.10, prepay any Overadvances, the Borrower shallRevolving Loans, on the date of such terminationSwing Loans, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations in a cash collateral account established with by the Collateral Agent for amount, if any, necessary to reduce the benefit amount of the Secured Parties in aggregate Revolving Credit Exposures of all Lenders then outstanding to the manner described in Section 2.03(g). If for any reason amount of the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, or the Borrower shall immediately prepay all outstanding amounts to which the Revolving Credit Loans Commitments have been so reduced and (B) on each date the aggregate amount of Revolving Credit Exposures of all Lenders then outstanding exceeds the lesser of (x) the Revolving Loan Limit as determined based on the most recent Compliance Certificate (plus any Overadvances pursuant to Section 2.11(b)) and (y) the total Revolving Credit Commitments, prepay the Revolving Loans, Swing Line Loans and/or Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations and repay any Overadvances then due and payable pursuant to Section 2.11(b), in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than Borrowers shall pay to the earlier of (i) 90 days after the end of each fiscal year Agent when and as received by Borrowers and as a mandatory prepayment of the BorrowerObligations, commencing a sum equal to the Cure Amount determined in accordance with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered Credit Parties’ exercise of Cure Rights pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit and in accordance with Section 2.05(b)(vii7.7 hereof. The prepayment shall be applied unless otherwise agreed by the Agent (x) 100% of such Cure Amount first to any outstanding Overadvances, then to the Term Loan, ratably, each such ratable amount to be applied against the remaining installments of principal of the Term Loan in the inverse order of their maturities, and thereafter to repay outstanding principal of the Revolving Loans (without a concomitant reduction in the Revolving Credit Commitments), and (y) if no Overandvances are outstanding and if the Term Loan, and Revolving Loans are paid in an aggregate principal amount equal to full, thereafter against the Required Prepayment Percentage of Excess Cash Flow for other Obligations, in such order as the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal yearAgent determines.
(vi) The Unless Borrower shall deliver to the Administrative AgentRepresentative otherwise directs, at the time prepayments of each prepayment required Loans under this Section 2.05(b), (i2.8(b) a certificate signed by a Responsible Officer shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the Borrower setting forth order in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender)which their Interest Periods expire. Each notice prepayment of prepayment Loans under this Section 2.8(b) shall specify be made by the prepayment date, the Class and Type payment of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05prepaid and, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B any Term Loans, Swing Loans being so prepaidor Eurodollar Loans, first to Tranche B Term Loans that are Base Rate Loans accrued interest thereon to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes date of prepayment together with any amounts due the amount Lenders under Section 8.1. Each prefunding of any payments required to L/C Obligations shall be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 7.4.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) In the event of any termination of all of the Revolving Credit CommitmentsIf, the Borrower shallafter March 31, on the date of such termination2006, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason reason, the Total Outstandings at any time exceed the Total Revolving Credit Commitments lesser of the Borrowing Base or the Aggregate Commitment then in effect, the Borrower shall immediately prepay all Revolving Credit Loans in an aggregate amount equal to such excess, and thereafter if there is still an excess, Cash Collateralize the L/C Obligations, and thereafter if there is still an excess, prepay the then outstanding Term Loan to the extent of such excess.
(ii) If, at any time for any reason, the aggregate outstanding principal amount of Revolving Credit Loans and all outstanding Swing Line L/C Obligations exceeds the lesser of, when applicable, the Revolver Borrowing Base or the Revolving Credit Commitment, the Borrower shall immediately prepay Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans Credit Loans, the Total Outstandings L/C Obligations exceed the Total lesser of, when applicable, the Revolver Borrowing Base or the Revolving Credit Commitments Commitment then in effect.
(iiiii) Not later than The Borrower shall prepay outstanding Revolving Credit Loans (and thereafter, Cash Collateralize the fifth L/C Obligations), within five Business Day following Days after financial statements have been delivered pursuant to Section 6.01(a) and the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andrelated Compliance Certificate has been delivered pursuant to Section 6.02(b), in each casean amount equal to the net proceeds of Excess Cash Flow for the fiscal year covered by such financial statements; provided, however, that no such prepayment shall cause a reduction in the Revolving Credit Commitment; and provided, further, that, the receipt total prepayment amount due and owing under this sentence shall be reduced by the amount by which (A) the Outstanding Amount of Net Cash Proceeds resulting therefromRevolving Credit Loans as of the most recent January 1 preceding the date the Section 6.01(a) financial statements have been delivered, exceeds (B) the Borrower shall apply Outstanding Amount of Revolving Credit Loans as of the Required Prepayment Percentage date of timely delivery of said financial statements, if such Net Cash Proceeds received with respect thereto difference is positive and solely to prepay outstanding the extent it reflects a net reduction in the Outstanding Amount of Revolving Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)during such period.
(iiiiv) In the event and on each occasion that a Specified Equity Issuance occurs, any Net Proceeds are received by or on behalf of the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a the Borrower or any other Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness in respect of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02)Prepayment/Reduction Event, then, immediately after such Net Proceeds are received, the Borrower shall, substantially simultaneously with (and shall prepay the then outstanding Term Loan in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds, and thereafter such Net Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of shall reduce the Revolving Credit in accordance with Section 2.05(b)(vii)Commitment.
(v) No later than Unless otherwise specified herein, each mandatory prepayment of Loans shall be applied first to Term Loan installments in the earlier inverse order of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007maturity, and (ii) second, to Revolving Credit Loans. Each prepayment shall be made together with accrued interest on the date on which the financial statements with respect amount prepaid and any amounts required to such period are delivered be paid pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year3.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Find SVP Inc)
Mandatory. (i) In The Borrower shall, on each date the event Revolving Credit Commitments are reduced pursuant to Section 2.11, prepay the Swingline Loans, 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 Swingline Loans, Revolving Loans, and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ii) If at any termination time the sum of the unpaid principal balance of the Term Loans, the Incremental Term Loans (if any), Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the Availability as determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall within three (3) Business Days and without notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Swingline Loans and Revolving Loans until paid in full, then to the Term Loans and the Incremental Term Loans (if any) on a combined ratable basis with respect to all such Loans until such Loans are paid in full, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Guaranteed Obligations owing with respect to the Letters of Credit.
(iii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to any outstanding Loans under the Revolving Facility, but without a reduction of the Revolving Credit Commitments, until payment in full thereof with any balance applied ratably to the Borrower shall, on outstanding Loans under the date Term Loan FacilityFacilities. Each prepayment of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters under this Section 2.8(b) shall be made by the payment of Credit and/or Cash Collateralize the principal amount to be prepaid. Each cash collateralization of L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit made in accordance with Section 2.05(b)(vii)9.4.
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. (i) In If at any time the event Total Utilization of any termination of all of Tranche 1 Revolving Commitments exceeds the Revolving Credit CommitmentsFirst Out Line Cap, then within one Business Day thereof, the Borrower shalland Co-Borrowers shall prepay first, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all second, the Revolving Loans to the extent necessary so that the Total Utilization of Tranche 1 Revolving Commitments shall no longer exceed the First Out Line Cap; provided that, to the extent such excess amount is greater than the aggregate principal dollar amount of Swing Line Loans and Revolving Loans outstanding Letters immediately prior to the application of such prepayment, the amount so prepaid shall be retained by the Administrative Agent and held in the Cash Collateral Account as cover for Letter of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner Usage, as more particularly described in Section 2.03(g2.04(l). If for any reason , and thereupon such cash shall be deemed to reduce the Total Outstandings at any time exceed aggregate Letter of Credit Usage by an equivalent amount; provided, further, that (1) if the Total Revolving Credit Commitments then circumstances described in effectthis clause (i) are the result of the imposition of or increase in a Reserve (other than a Push Down Reserve), the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower Co-Borrowers shall not be required to Cash Collateralize make the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the initial prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than or deposit until the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which Administrative Agent notifies the financial statements with respect Borrower of such imposition or increase and (2) the Letter of Credit Usage may not be reduced to such period are delivered pursuant less than zero. Prior to Section 7.01(a)the Revolver Commitment Termination Date, if, on any date, the Borrower aggregate FILO Loans exceed the FILO Borrowing Base at such time, a Push Down Reserve shall prepay outstanding Loans and/or Cash Collateralize Letters be immediately and automatically established in respect of Credit in accordance with Section 2.05(b)(vii), the Tranche 1 Borrowing Base in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal yearexcess.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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 At all times after the extent practicable, at least 10 Business Days prior written notice occurrence and during the continuance of such prepayment (a Cash Dominion Period and notification thereof by the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof Borrower (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph Sections 2.19, 9.03 and to the terms of the Security Agreement), on each Business Day, at or before 11:00 a.m., New York City time, the Administrative Agent shall apply all immediately available funds credited to the Administrative Agent Account or otherwise received by Administrative Agent for application to the Obligations or Secured Obligations (viiiin the case of clause sixth and clause eighth below), first, to payment of any fees, indemnities, expenses and other amounts (other than principal and interest, but including Attorney Costs payable under Section 11.04 and amounts payable under Article III) below payable to the Administrative Agent and any re-offer described thereinCollateral Agent in their capacity as such; second, at any time when there shall to payment in full of Unfunded Advances/Participations (the amounts so applied to be no Term Loans outstandingdistributed between or among, to prepay outstanding Revolving Loans to as applicable, the full extent thereof (Administrative Agent and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used Issuing Banks pro rata in accordance with the provisions amounts of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.Unfunded
Appears in 1 contract
Mandatory. (i) In To the event extent that the Net Cash Proceeds of any termination Asset Sale or Extraordinary Receipt exceeds $15,000,000 per Asset Sale or receipt of all of the Revolving Credit CommitmentsExtraordinary Receipts, the Borrower shall, on shall deliver the date notice required under Section 6.3(c) hereunder (it being agreed and understood that failure to deliver such notice shall not constitute a Default or Event of Default hereunder) and prepay an aggregate principal amount of Loans equal to 100% of such terminationexcess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in good faith intends to use such Net Cash Proceeds to acquire, repay improve or prepay maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for capital assets to be used in any line of business not prohibited by Section 7.7, then on or before the 365th day after such Asset Sale to the extent that, within such 365 day period, the Relevant Parties have not used such Net Cash Proceeds for such purpose, provided, that prepayment shall be required in an amount equal to 100% of such Net Cash Proceeds promptly after any earlier date on which the Borrower has determined not to use such Net Cash Proceeds for any such purpose) (all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations such prepayments to be applied as set forth in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(gclause (iii) below). .
(ii) If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectAggregate Commitments, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i2.4(b) unless after the prepayment in full of the Revolving Loans and Swing Line Loans L/C Borrowings, the Total Outstandings exceed the Total Revolving Credit Aggregate Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Prepayments of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Facility made pursuant to this Section 2.05 2.4(b) shall be subject applied, first, ratably to Section 3.05the L/C Borrowings, but shall otherwise be without premium or penalty.
second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans (vii) Mandatory other than the Swingline Loans), fourth, ratably to the outstanding Eurodollar Rate Loans, and fifth, in the case of prepayments under sub-paragraphs Section 2.4(b)(ii) only, to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Facility required pursuant to clause (i) or (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid2.4(b), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Loans outstanding at such mandatory prepayment shall be applied (A) time and, in the case of prepayments under Section 2.4(b)(ii) only, the applicable principal amount Cash Collateralization of the Tranche B Term Loans being so prepaidremaining L/C Obligations in full, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to be used reimburse the L/C Issuer or the Lenders, as applicable. Prepayments of the Facility made pursuant to this Section 2.4(b) shall not result under any circumstance in accordance with a permanent reduction of the provisions of this AgreementCommitments.
Appears in 1 contract
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, If the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Subsidiary shall at any time exceed or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of the Total Revolving Credit Commitments Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in effectrespect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, the Borrower shall immediately prepay all outstanding Revolving Credit the Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such excessNet Cash Proceeds; providedprovided that in the case of each Disposition and Event of Loss, howeverif the Borrower states in its notice of such event that the Borrower or a Subsidiary intends to reinvest, that within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition or Event of Loss, then so long as no Default or Event of Default then exists, the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to make a mandatory prepayment under this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 180-day period. Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the Borrower or a 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 Loans (or all outstanding Loans and/or and L/C Obligations if an Event of Default exists) in the amount of such Net Cash Collateralize Letters Proceeds not so reinvested. If the Borrower has not prepaid the Loans with the Net Cash Proceeds received as described in clause (i) above and if the Administrative Agent or the Required Lenders so request, all proceeds of Credit such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in accordance the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 hereof, the Borrower shall promptly notify the Administrative Agent 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 Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date the Borrower or any Subsidiary shall receive any “Employer Reversion” (as defined in Section 4980(c)(2) of the Code), the Borrower shall promptly notify the Administrative Agent of such amount. Promptly upon receipt by the Borrower or such Subsidiary of such amount, and after deduction for all income, excise and other federal, state and local taxes, penalties and interest due with Section 2.05(b)(viirespect to such Employer Reversion under the Code or any other applicable law, the Borrower shall prepay the Loans in an aggregate amount equal to 100% of the net amount after such deductions.
(iv) If after the Closing Date the Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options and capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted hereby, the Borrower shall promptly notify the Administrative Agent 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 Loans in an aggregate amount equal to 75% of the amount of such Net Cash Proceeds.
(v) No later than The Borrower shall, on each date the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period Revolving Credit Commitments are delivered reduced pursuant to Section 7.01(a)1.12 hereof, prepay the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit Revolving Loans, Swing Loans, and, if necessary, prefund the L/C Obligations in accordance with Section 2.05(b)(vii)9.4 by the amount, in an if any, necessary to reduce the sum of the aggregate principal amount equal of Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the Required Prepayment Percentage of Excess Cash Flow for amount to which the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal yearRevolving Credit Commitments have been so reduced.
(vi) The Unless the Borrower shall deliver to the Administrative Agentotherwise directs, at the time prepayments of each prepayment required Loans under this Section 2.05(b), (i1.8(b) a certificate signed by a Responsible Officer shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the Borrower setting forth order in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender)which their Interest Periods expire. Each notice prepayment of prepayment Loans under this Section 1.8(b) shall specify be made by the prepayment date, the Class and Type payment of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) prepaid and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) accrued interest thereon to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount date of Term Loans so prepaid)prepayment and, subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of any Eurodollar Loan or Swing Loan, together with any amounts due the applicable principal amount Lenders under Section 1.11 hereof. Each prefunding of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to L/C Obligations shall be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 9.4 hereof.
Appears in 1 contract
Sources: Credit Agreement (CTS Corp)
Mandatory. (i) In The Term A Commitments shall automatically terminate in whole on the event of any termination of Term A Facility Termination Date and all Advances made thereunder shall be repaid in full, no later than the fifth anniversary of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectTerm A Draw Date.
(ii) Not On the date of the Term B Borrowing, after giving effect to such Term B Borrowing, and from time to time thereafter upon each repayment or prepayment of the Term B Advances, the aggregate Term B Commitments of the Term B Lenders shall be automatically and permanently reduced, on a pro rata basis, by an amount equal to the amount by which the aggregate Term B Commitments immediately prior to such reduction exceed the aggregate unpaid principal amount of the Term B Advances then outstanding; PROVIDED, HOWEVER, that the Term B Commitments shall terminate, and all Advances made thereunder shall be repaid in full, no later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andDecember 31, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)2005.
(iii) In On and after the event date that all Term A Advances and Term B Advances shall have been repaid in full the Revolving Credit Facility shall be automatically and permanently reduced on each occasion date on which prepayment thereof is required to be made pursuant to Section 2.6(b)(i), (ii), (iii) or (iv) in an amount equal to the applicable Reduction Amount, PROVIDED that a Specified Equity Issuance occurs, each such reduction of the Borrower shall, substantially simultaneously with (and in any event not later than Revolving Credit Facility shall be made ratably among the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Revolving Credit Lenders in accordance with Section 2.05(b)(vii)their Revolving Credit Commitments.
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters The Letter of Credit Facility shall be permanently reduced from time to time on the date of each reduction in accordance with Section 2.05(b)(vii)the Revolving Credit Facility by the amount, if any, by which the amount of the Letter of Credit Facility exceeds the Revolving Credit Facility after giving effect to such reduction of the Revolving Credit Facility.
(v) No later than In the earlier of (i) 90 days after event the end of each fiscal year Closing Date shall not have occurred by October 30, 1998, then all of the Borrower, commencing with the fiscal year ending on December 31, 2007, Commitments shall be automatically terminated and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower this Agreement shall prepay outstanding Loans and/or Cash Collateralize Letters be of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal yearno further force or effect.
(vi) The Borrower shall deliver to Notwithstanding the Administrative Agent, at the time of each prepayment required under this Section 2.05(bforegoing in clauses (i), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section 2.5(b), in the event the Term A Borrowing is not consummated on or prior to the Term A Facility Termination Date other than by reason of the breach, if any, by any Lender(s) of its obligation hereunder to make its Term A Advance), then all of the Commitments shall automatically and immediately terminate and all the outstanding Advances shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (payable in accordance with the respective outstanding principal amounts thereof) to the full extent thereof clause (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (vix) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepaymentSection 2.6(b). In the event of such a re-offer, the relevant Lenders may elect, by notice to the Administrative Agent by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on On the date of the Term Loan Borrowing, after giving effect to such terminationTerm Loan Borrowing, repay and from time to time thereafter upon each repayment or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit prepayment of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectTerm Loan Advances, the Borrower aggregate Term Loan Commitments of the Term Loan Lenders shall immediately prepay all outstanding Revolving Credit Loans be automatically and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in permanently reduced, on a pro rata basis, by an aggregate amount equal to the amount by which the aggregate Term Loan Commitments immediately prior to such excessreduction exceed the aggregate unpaid principal amount of the Term Loan Advances then outstanding; provided, however, that the Borrower Term Loan Commitments shall not terminate, and all Advances made thereunder shall be required to Cash Collateralize repaid in full, no later than the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectTerm Loan Termination Date.
(ii) Not later than On and after the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, date that all Term Loan Advances shall have been repaid in each casefull, the receipt of Net Cash Proceeds resulting therefrom, the Borrower Revolving Credit Facility shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event be automatically and permanently reduced on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments is required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid2.06(b)(i), first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) in an amount equal to the applicable Reduction Amount, provided that each such reduction of this Sectionthe Revolving Credit Facility shall be made ratably among the Revolving Credit Lenders in accordance with their Revolving Credit Commitments.
(iii) The Letter of Credit Facility shall be permanently reduced from time to time on the date of each reduction in the Revolving Credit Facility by the amount, in if any, by which case the aggregate amount of the prepayment that would have been applied Letter of Credit Facility exceeds the Revolving Credit Facility after giving effect to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents reduction of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). Revolving Credit Facility.
(iv) In the event of such a re-offer, that:
(A) the relevant Lenders may elect, by notice Offer Documents are not posted on or prior to the Administrative Agent by facsimile within two Business Days of receiving notification of such retwenty-offer, to decline all of eighth (28th) day following the amount of such prepayment that is re-offered to them, in which case Announcement Date;
(B) the aggregate amount of Company and/or Bidco withdraws the prepayment that would have been applied to prepay such Term Loans pursuant to such re-offer but was so declined may be retained by Offer or the Borrower to be used Offer lapses in accordance with the provisions of this Agreement.City Code;
Appears in 1 contract
Sources: Credit Agreement (Applied Graphics Technologies Inc)
Mandatory. (i) In Promptly upon receipt by the event Borrower or any of any termination of all its Subsidiaries of:
(A) the Net Cash Proceeds received from the sale of the Revolving Credit CommitmentsMiami Property, the Borrower shall, shall prepay an aggregate principal amount of Revolving Credit Loans equal to the lesser of (1) 100% of all such Net Cash Proceeds and (2) the difference between the outstanding principal amount of Revolving Credit Loans on the date of such terminationprepayment, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize $500,000,000; and
(B) any tax refund attributable to the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit sale of the Secured Parties Star Tribune Company that is received in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full second fiscal quarter of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party fiscal 2008 or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a)thereafter, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount of Revolving Credit Loans equal to the Required Prepayment Percentage lesser of Excess Cash Flow for the fiscal year then ended less the (1) an aggregate principal amount of all Voluntary Prepayments during Revolving Credit Loans equal to 100% of such fiscal year.
tax refund, and (vi2) The Borrower shall deliver to the Administrative Agentdifference between the outstanding principal amount of Revolving Credit Loans on the date of such prepayment, at and $500,000,000. Notwithstanding the time of each foregoing, if any prepayment required under this Section 2.05(b)) would require the Borrower to prepay Revolving Credit Loans on other than the last day of an Interest Period and such prepayment would require the Borrower to compensate the Lenders under Section 3.05 by reason of such prepayment, (i) a certificate signed by a Responsible Officer then the Borrower may delay making the prepayment until the last day of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and applicable Interest Period.
(ii) to Prepayments of the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings Revolving Credit Facility made pursuant to this Section 2.05 2.05(b), first, shall be subject applied ratably to Section 3.05the L/C Borrowings and the Swing Line Loans, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii)second, (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) applied ratably to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)outstanding Revolving Credit Loans, subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; secondand, at any time when there third, shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, used to Cash Collateralize the remaining L/C Obligations that are in excess of $500,000,000. Upon the drawing of any outstanding Letters Letter of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepaymenthas been Cash Collateralized, the amount of such mandatory prepayment funds held as Cash Collateral shall be applied (Awithout any further action by or notice to or from the Borrower or any other Loan Party) in to reimburse the case L/C Issuer or the Revolving Credit Lenders, as applicable.
(d) Section 2.06 of the applicable principal amount of the Tranche B Term Loans being so prepaid, first Credit Agreement is hereby amended and restated to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans read in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.entirety as follows:
Appears in 1 contract
Sources: Credit Agreement (McClatchy Co)
Mandatory. In the event that Borrower or any of its Subsidiaries intends to make any Asset Sale (other than an Exempt Asset Sale) that would involve an aggregate sale price (including cash and non-cash consideration) in excess of 10% of Consolidated Total Assets as of the most recent fiscal year end with respect to which the Administrative Agent and the Lenders shall have received the financial statements referred to in Section 7.1(a)(i):
(i) In the Borrower will give the Administrative Agent, not later than the date of such Asset Sale, written notice thereof specifying the manner in which the Borrower intends to apply the Net Proceeds of such Asset Sale, and, in the event that the Borrower elects to make a voluntary prepayment, repurchase, redemption or retirement of any termination of the Senior Debt Securities with any of such Net Proceeds, then, at the request of the Required Lenders, the Borrower shall simultaneously pay or prepay the outstanding Advances, if any, and reduce the Commitments, in the amount specified by the Required Lenders, such amount in any event not to exceed the amount equal to the percentage of the Net Proceeds applied or to be applied to such voluntary prepayment, repurchase, redemption or retirement of Senior Debt Securities obtained by dividing (1) the then current Aggregate Commitment by (2) the sum of (x) the aggregate then outstanding principal amount of all Senior Debt Securities plus (y) the then current Aggregate Commitment; and
(ii) if the Borrower shall not previously have made any payment or prepayment of the Revolving Credit CommitmentsAdvances with the Net Proceeds of such Asset Sale pursuant to the terms of clause (i) above, the Borrower will give the Administrative Agent, not later than the date which is 250 days after the date of such Asset Sale, written notice specifying the amount of the Net Proceeds of such Asset Sale which, on the date which is 270 days after the date of such Asset Sale, are expected by the Borrower to become Excess Proceeds, then, at the request of the Required Lenders, the Borrower shall, on simultaneously with the date purchase of such terminationany Senior Debt Securities pursuant to the Senior Indenture, repay pay or prepay all the outstanding Revolving Credit Loans Advances, if any, and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize reduce the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties Commitments, in the manner described amount specified by the Required Lenders, such amount in Section 2.03(g). If for any reason the Total Outstandings at any time event not to exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to the percentage of the Net Proceeds of such excessAsset Sale exceeding $10,000,000.00 obtained by dividing (1) the then current Aggregate Commitment by (2) the sum of (x) the aggregate then outstanding principal amount of all Senior Debt Securities plus (y) the Aggregate Commitment; provided, however, that and The Administrative Agent hereby agrees to promptly notify each of the Lenders of receipt by the Administrative Agent of any notice from 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender2.6(b). Each notice of prepayment shall specify the prepayment date, the Class -27- (141) Payments and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii2.6(b) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans Advances and then to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Eurodollar Rate Loans Advances in a manner that minimizes the amount direct order of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementmaturities.
Appears in 1 contract
Sources: Credit Agreement (Dimon Inc)
Mandatory. (i) In Upon the event incurrence by a Loan Party of any termination Debt for borrowed money other than Debt permitted to be incurred pursuant to Section 5.02(b), not later than two (2) Business Days following the date of all receipt of the Revolving Credit Commitmentsany Net Proceeds thereof, the Borrower shall, on shall make a prepayment of the date Term Loan in an amount equal to 100% of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). Net Proceeds.
(ii) If for any reason the Combined Total Outstandings at any time exceed the Total Revolving Credit Commitments Global Borrowing Base as then in effect, then (A) until the Discharge of ABL Obligations, the Borrower shall immediately prepay all outstanding Revolving Credit first, the ABL Obligations and, then, the Loans (which prepayment shall be applied ratably as between the Term Loan Facility and all outstanding Swing Line the Delayed Draw Term Loan Facility) and (B) thereafter, the Borrower shall immediately prepay the Loans and/or Cash Collateralize (which prepayment shall be applied ratably as between the L/C Obligations Term Loan Facility and the Delayed Draw Term Loan Facility), in each case in an aggregate amount equal to eliminate 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In Within one (1) Business Day following receipt by any Loan Party or any Affiliate thereof of any portion of the event and on each occasion that a Specified Equity Issuance occurs2020 Tax Refund Proceeds, the Borrower shallshall (A) first, substantially simultaneously with make a prepayment of the Delayed Draw Term Loan in an amount equal to the lesser of (x) 100% of the amount of the 2020 Tax Refund Proceeds so received and (y) the Delayed Draw Term Loan Facility at such time (plus accrued interest thereon and the Early Termination Fee, if any, payable pursuant to Section 2.04 in any event not later connection therewith), and (B) second, to the extent the amount of the 2020 Tax Refund Proceeds so received is greater than the fifth Business Day next following) amount of the occurrence of such Specified Equity Issuance and prepayment required pursuant to the receipt of Net Cash Proceeds resulting therefromforegoing clause (A), apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)any ABL Obligations then outstanding.
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year Each prepayment of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings made pursuant to this Section 2.05 2.06(b) shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained accompanied by the Borrower to be used in accordance with the provisions payment of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans accrued interest to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes date of such payment on the amount of any payments required to be made by the Borrower pursuant to Section 3.05 prepaid and (B) in whether before or after an Event of Default or acceleration, the case of the applicable principal amount of the Tranche C Term Loans being so prepaidEarly Termination Fee, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower if any, payable pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of 2.04 in connection with any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementLoans.
Appears in 1 contract
Mandatory. (i) In the event of any termination of all of the Revolving Credit CommitmentsThe Borrowers shall, the Borrower shallif a Cash Dominion Period, has occurred and is continuing, on the Business Day following the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Restricted Subsidiaries during such terminationCash Dominion Period, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit an aggregate principal amount of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount Advances equal to such excessNet Cash Proceeds; provided, however, that (A) the Borrower Borrowers shall not be required to make any prepayment hereunder with Net Cash Collateralize Proceeds unless and until the L/C Obligations aggregate amount of all such Net Cash Proceeds (excluding Net Cash Proceeds from Extraordinary Receipts) that have not theretofore been applied to prepay the Advances pursuant to this Section 2.05(b)(i2.07(b)(i) unless exceeds $5,000,000 (at such time the Borrowers shall be required to make a prepayment hereunder with all such excess Net Cash Proceeds except to the extent such prepayment is not required under clause (B), (C), (D) or (E) of this proviso), (B) to the extent the aggregate amount of all Net Cash Proceeds (excluding Net Cash Proceeds from Extraordinary Receipts) received by the Loan Parties and their Restricted Subsidiaries shall exceed $10,000,000, only 75% of such excess amount of Net Cash Proceeds received shall be required to be applied to prepayment hereunder, (C) in the case of Net Cash Proceeds that are Extraordinary Receipts in respect of any casualty or condemnation event (“Extraordinary Receipts Proceeds”), to the extent such Extraordinary Receipts Proceeds are used to repair, restore or replace the assets that are the subject of such event in substantially the same location promptly after the receipt of such Extraordinary Receipts Proceeds by a Loan Party or any of its Restricted Subsidiaries, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder, (D) in full the case of Extraordinary Receipts Proceeds received with respect to a casualty or condemnation event in respect of Inventory, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder and (E) in the case of Extraordinary Receipts Proceeds on account of the Revolving Loans claims subject to the C▇▇▇▇▇▇ Fire Settlement, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder to the extent that such Extraordinary Receipts Proceeds shall be used to pay or reimburse the Loan Parties and Swing Line Loans their Restricted Subsidiaries for funding the Total Outstandings exceed settlement fund described in the Total definition of “C▇▇▇▇▇▇ Fire Settlement” and/or for legal fees and expenses incurred in connection therewith. Notwithstanding the foregoing, (x) Net Cash Proceeds attributable to the assets of the Foreign Borrower or the Swiss Guarantor or any CFC shall not be required under this Section 2.07(b) to be applied to any repayment in respect of the US Revolving Credit Commitments then Facility and (y) Net Cash Proceeds attributable to the assets of the US Loan Parties shall be applied first to the US Revolving Credit Facility as set forth in effect.clause (iv) below, second, if required under Section 2.03(g), deposited in the US L/C Cash Collateral Account, third, to the Foreign Revolving Credit Facility as set forth in clause (iv) below, fourth, if required under Section 2.21(g), deposited in the Foreign L/C Cash Collateral Account. 77 Chemtura (Revolving Facility) Credit Agreement
(ii) Not later than the fifth (A) The US Borrowers shall, on each Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event andDay, if applicable, prepay, in each casecase without any reduction of any Commitments, an aggregate principal amount of the US Revolving Credit Advances, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters US Letter of Credit Advances or the Swing Line Advances or deposit an amount in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and US L/C Collateral Account in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage amount by which (1) the sum of such Net Cash Proceeds to prepay (x) the US Revolving Credit Advances, the US Letter of Credit Advances and the Swing Line Advances then outstanding Loans and/or Cash Collateralize plus (y) the aggregate Available Amount of all US Letters of Credit in accordance with Section 2.05(b)(vii).
then outstanding exceeds (v2) No later than the earlier lesser of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (iix) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% sum of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the US Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 Commitments and (By) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementUS Borrowing Base.
Appears in 1 contract
Sources: Senior Secured Revolving Facilities Credit Agreement (Chemtura CORP)
Mandatory. On the six month anniversary of the Issue Date (the “Mandatory Redemption Date”), in the event of an Asset Sale (to be defined) with more than $100 million of net cash proceeds from such Asset Sale occurring before the Mandatory Redemption Date or, if no Asset Sale occurs prior to the Mandatory Redemption Date but the Company receives before such date at least $20 million of Subscription Price on account of the Escrowed Notes (as defined in the Backstop Commitment Agreement) issued to holders of Allowed Disputed Claims (as defined in the Backstop Commitment Agreement), the Company shall apply the net cash proceeds from any such Asset Sale and the aggregate Subscription Price (if any) received by the Company after the Issue Date but before the Mandatory Redemption Date to redeem New Notes (for the avoidance of doubt, including Escrowed Notes in the Escrowed Notes Account) at a price equal to 105% of the par value of the New Notes, plus accrued and unpaid interest to the redemption date; provided that (i) In the event of any termination of all Company has minimum Liquidity, after giving effect to such Asset Sale and application of the Revolving Credit Commitments, the Borrower shall, on the date net cash proceeds thereof and repayment of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
Subscription Price (ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02as applicable), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007at least $600 million, and (ii) the date on Company is permitted to make such redemption by the agreements governing its outstanding indebtedness, which the financial statements with respect Company will use commercially reasonable efforts to permit such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)redemption, subject to compliance with the provisions of sub-paragraph (viii) below foregoing liquidity requirement. The net cash proceeds received from an Asset Sale and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained Subscription Price received by the Borrower to be used in accordance with the provisions Company on account of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days Escrowed Notes prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall Mandatory Redemption Date will be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained deposited by the Borrower to be used in accordance with Company into escrow until the provisions of this AgreementMandatory Redemption Date.
Appears in 1 contract
Sources: Backstop Commitment Agreement (AbitibiBowater Inc.)
Mandatory. (i) In For any Excess Cash Flow Period, within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the event related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, if later, the date on which such financial statements and such Compliance Certificate are required to be delivered), the Parent Borrower shall prepay an aggregate principal amount of Term Loans in an amount equal to (A) 50% (as may be adjusted pursuant to the proviso below) of Excess Cash Flow for such Excess Cash Flow Period, minus (B) the sum of (1) the aggregate amount of voluntary principal prepayments of the Loans and “Loans” as defined in the First Lien Credit Agreement, in each case, made during the period commencing on the first day of the relevant Excess Cash Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (excluding prepayments at a discount to par and open market purchases) (except prepayments of Loans (as defined in the First Lien Credit Agreement) under any termination of all Revolving Tranche (as defined in the First Lien Credit Agreement) that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches (as defined in the First Lien Credit CommitmentsAgreement)), in each case other than to the Borrower shall, on the date of extent that any such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established prepayment is funded with the Collateral Agent for proceeds of Specified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness and (2) any amount not required to be applied to such prepayment pursuant to Section 2.05(b)(viii) or (ix); provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the benefit Consolidated First Lien Net Leverage Ratio as of the Secured Parties in last day of the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or fiscal year to which such Excess Cash Collateralize the L/C Obligations in an aggregate amount Flow Period relates was equal to such excessor less than 4.00:1.00 or 3.50:1.00, respectively; provided, howeverfurther, that the Borrower no prepayment shall not be required with respect to any Excess Cash Collateralize Flow Period to the L/C Obligations extent Excess Cash Flow for such period is equal to or less than $1,000,000 (and for such period such prepayment shall be limited to the amount in excess of $1,000,000); provided, further, that, if the Consolidated First Lien Net Leverage Ratio on a Pro Forma Basis after giving effect to any Excess Cash Flow prepayment would result in the percentage in respect of the applicable Excess Cash Flow Period being reduced to 25% or 0%, then such reduced percentage applicable to the Excess Cash Flow prepayment required to be made shall apply; provided, further, that no such prepayment shall be required for any Excess Cash Flow Period (x) if any First Lien Facilities remain outstanding at the time the financial statements and related Compliance Certificate for such Excess Cash Flow Period are required to be delivered pursuant to this Section 2.05(b)(i) or (y) unless after with the prepayment in full proceeds of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted mandatory prepayments pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following2.05(b)(i) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of First Lien Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained Agreement declined by the Borrower to be used in accordance with the provisions of this AgreementLenders thereunder.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Maravai Lifesciences Holdings, Inc.)
Mandatory. Until such time as the Outstanding Amount has been repaid in full, the Outstanding Amount shall be permanently prepaid in the amounts set forth below upon the occurrence of any of the following events:
(i) In the event of any termination of all of the Revolving Credit Commitments, Debt Issuance by the Borrower shallor any of its Restricted Subsidiaries on or after the Closing Date, on the date then concurrently with receipt of Net Cash Proceeds of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effectDebt Issuance, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Net Cash Proceeds; provided that to the extent that (a) to the extent any Net Cash Proceeds received in connection with a Debt Issuance permitted by Section 7.03(i) are used to make a voluntarily redemption, repurchase or prepayment of the 2014 Notes or the 2017 Notes or (b) to the extent any Net Cash Proceeds received in connection with a Debt Issuance permitted by Section 7.03(j) are used to make a voluntarily redemption, repurchase or prepayment of the Convertible Notes, in each case, such Net Cash Proceeds shall not be required to prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, pursuant to this clause (i).
(ii) If Net Cash Proceeds of Extraordinary Receipts received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries exceed during any calendar year an amount equal to $25,000,000 (the portion of such excessNet Cash Proceeds that exceeds $25,000,000 is herein referred to as “Excess Extraordinary Receipts”) the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower or such Restricted Subsidiary; provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), for so long as no Event of Default shall have occurred and be continuing, the Borrower or a Restricted Subsidiary may reinvest such Extraordinary Receipts in assets used in the businesses of the Borrower or its Restricted Subsidiaries, and in such case any such Extraordinary Receipts that have not been reinvested within one year from the receipt thereof by the Borrower or such Restricted Subsidiary shall not be required immediately applied to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Term Loans and Swing Line Loans and, if so provided in the Total Outstandings exceed the Total Revolving Credit Commitments then in effectIncremental Term Supplement applicable thereto, Incremental Term Loans.
(iiiii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of If Net Cash Proceeds resulting therefrom, received on or after the Closing Date by the Borrower shall apply or any of its Restricted Subsidiaries from one or more Dispositions (other than Dispositions to the Required Prepayment Percentage Borrower or to a Restricted Subsidiary permitted by Section 7.05(a)(v) or 7.05(a)(vi)) or Dispositions permitted by Section 7.05(a)(iv) of property other than Revolver Priority Collateral exceed during any calendar year, an aggregate amount equal to $30,000,000 (the portion of such Net Cash Proceeds received with respect thereto that exceeds $30,000,000 is herein referred to as “Excess Disposition Net Cash Proceeds”) the Borrower shall prepay outstanding an aggregate amount of Term Loans and/or and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Disposition Net Cash Collateralize Letters Proceeds immediately upon receipt thereof by the Borrower or a Restricted Subsidiary, provided, however, (x) for so long as no Event of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event Default shall have occurred and on each occasion that a Specified Equity Issuance occursbe continuing, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of or a Subsidiary may reinvest such Specified Equity Issuance and the receipt of Excess Disposition Net Cash Proceeds resulting therefromin assets used in the business of the Borrower or its Subsidiaries, apply the Required Prepayment Percentage of and in such case any Excess Disposition Net Cash Proceeds therefrom that have not been reinvested within one year from the receipt thereof by the Borrower or such Subsidiary shall, upon the expiration of such one-year period, be immediately applied, as otherwise provided in this Section 2.03(b)(iii), to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, or if clause (y) is applicable thereto, as provided in clause (y); and (y) Excess Disposition Net Cash Proceeds received from one or more Dispositions permitted by Section 7.05(a)(ix) or 7.05(a)(x) may be either (1) reinvested as provided in clause (x) above or (2)(A) used by the Borrower to make an optional prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, at par in an amount equal to the Lenders’ Applicable Percentage (calculated without regard for any Outstanding Amount of any Class of Loans not entitled to share in such application) of such Excess Disposition Net Cash Proceeds or (B) used by the Borrower to make a voluntary redemption of the 2014 Notes or, if the 2014 Notes are no longer outstanding, to make an offer to the Lenders to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with the Term Facility pursuant to Section 2.05(b)(vii)2.03(c) and, to the extent such offer is declined, the Borrower may retain such declined amounts.
(iv) In the event that there shall be Consolidated Excess Cash Flow for any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party fiscal year (other than Indebtedness permitted pursuant to Section 8.02commencing with fiscal year ending December 31, 2011), the Borrower shall, substantially simultaneously with (and in any event not no later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 ninety days after the end of each such fiscal year, prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in an aggregate amount equal to 50% of such Consolidated Excess Cash Flow less 100% of voluntary prepayments made during that fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a2.03(a); provided, however, that (A) in the event that the Consolidated Leverage Ratio is less than 3.00 to 1.00 but greater than or equal to 2.00:1.00 as evidenced by a Compliance Certificate provided pursuant to Section 6.02(b) as of the end of such fiscal year, the Borrower shall prepay outstanding the Term Loans and/or Cash Collateralize Letters of Credit and, if so provided in accordance with Section 2.05(b)(vii)the Incremental Term Supplement applicable thereto, Incremental Term Loans, in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 10525% of the aggregate undrawn face amount such Consolidated Excess Cash Flow less 100% of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory voluntary prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans made during that fiscal year pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A2.03(a) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of event that the applicable principal amount of the Tranche C Term Loans being so prepaidConsolidated Leverage Ratio is less than 2.00 to 1.00, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with as evidenced by a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower Compliance Certificate provided pursuant to Section 3.056.02(b) as of the end of such fiscal year or upon the written consent of the Required Lenders, no such prepayment shall be required. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs contrary contained within this subsection (iiiv), (iii), the Borrower shall not be required to make any payment under this subsection (iv) or (v) of this Section, in which case to the aggregate amount of the prepayment extent that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer would cause Liquidity to be made to each such Term Loan Lender based on fall below the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementMinimum Liquidity Threshold.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) In Upon the event incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 8.027.03 (except Credit Agreement Refinancing Indebtedness), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or (or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)Collateralize, in as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100.00% of the Required Prepayment Percentage gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within ninety (90) days thereof in connection therewith, within one (1) Business Day following receipt thereof by the Borrower or such Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (v) and (vii) below).
(ii) In the event that (a) there shall be Consolidated Excess Cash Flow for any Fiscal Year (commencing with the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative AgentFiscal Year ending December 31, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv2022) and (vb) of this Section shall be applied: first, to prepay outstanding there are any Term Loans on a pro rata basis outstanding at the end of such Fiscal Year, the Borrower shall, no later than one-hundred-twenty-five (in accordance with 125) days after the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the end of such Fiscal Year, prepay an aggregate principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect equal to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) the ECF Percentage of such Consolidated Excess Cash Flow for such Fiscal Year less (B) all voluntary prepayments of Term Loans, loans under any Incremental Equivalent Debt, Revolving Credit Loans and/or loans under other Indebtedness, in each case, secured on a pari passu basis with the Liens securing the Obligations hereunder, in each case, made during such Fiscal Year or after the end of such Fiscal Year and prior to the date such Consolidated Excess Cash Flow prepayment is due (in the case of the applicable principal amount of the Tranche B Term any such Revolving Credit Loans being so or other revolving Indebtedness prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans accompanied by a permanent reduction in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 relevant commitment, and (B) in the case of all such prepayments, to the applicable principal amount extent that such prepayments are financed with internally generated cash of the Tranche C Term Loans being so prepaidBorrower (and not from the proceeds of Indebtedness or the sale or issuance of Equity Interests or equity contributions) and, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period in the case of one month to all such prepayments made after the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount end of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days such Fiscal Year and prior to the applicable date such Consolidated Excess Cash Flow prepayment dateis due, provided that such amount so deducted shall not be deducted from the Excess Cash Flow Amount in any subsequent period) (such amount, the “Excess Cash Flow Amount”) to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or be applied as set forth in clauses (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment and (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreementvii) below.
Appears in 1 contract
Sources: Credit Agreement (Yesway, Inc.)
Mandatory. (i) In On any date that (A) the event sum of any termination the outstanding principal amount of all Loans plus the Letter of Credit Exposure exceeds (B) the Revolving Credit CommitmentsFacility Limit, as notified to the Borrower by the Administrative Agent (with such calculation set forth in reasonable detail which shall be conclusive absent manifest error), the Borrower shall, on within one (1) Business Day, to the date extent of such terminationexcess, repay or first prepay all to the Lenders on a pro rata basis the outstanding Revolving Credit Loans principal amount of the Loans, and all outstanding Swing Line Loans and replace all outstanding Letters second make deposits into the Cash Collateral Account to provide cash collateral in the amount of such excess for the Letter of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effectExposure.
(ii) Not If any Credit Party receives any Net Cash Proceeds in respect of any Prepayment Event, then the Borrower shall, no later than the fifth three (3) Business Day Days following the completion receipt thereof, apply (A) in respect of any Asset Sale and/or not later than sale, transfer or other disposition of ABL Priority Collateral or receipt of Net Cash Proceeds in connection with a Casualty Event involving ABL Priority Collateral, an amount equal to 100% of such Net Cash Proceeds first to prepay to the tenth Business Day following Lenders on a pro rata basis the occurrence outstanding principal amount of any Recovery Event the Loans, and second to make deposits into the Cash Collateral Account to provide cash collateral up to the amount of such Letter of Credit Exposure and, in each case, if any such ABL Priority Collateral was included in the receipt calculation of Net Cash Proceeds resulting therefromthe Borrowing Base, the Borrower shall apply deliver a Borrowing Base Certificate including pro forma adjustments for such sale and/or Casualty Event concurrently with the Required making of any prepayment required by this Section 2.4(c)(ii) and (B) in respect of any other Prepayment Percentage Event, an amount equal to 100% of such Net Cash Proceeds received with respect thereto that were not used to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii)the Exit Convertible Notes.
(iii) In If the event Borrower and on each occasion that a Specified Equity Issuance occursits Subsidiaries have Excess Cash as of the end of the last Business Day of any calendar week, the Borrower shallshall prepay Revolving Borrowings on the immediately following Business Day, substantially simultaneously with (and which prepayment shall be in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier lesser of (i) 90 days after the amount of such Excess Cash as of the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, such immediately preceding Business Day and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year Loans then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender)outstanding. Each notice prepayment of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Revolving Borrowings pursuant to this Section 2.05 2.4(c)(iii) shall be subject applied to Section 3.05Revolving Borrowings, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, ratably to prepay outstanding Term any ABR Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid)then outstanding, subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; and, second, at to any time when there shall be no Term Eurodollar Loans then outstanding, and if more than one Eurodollar Loan is then outstanding, to prepay outstanding Revolving Loans each such Eurodollar Loan in order of priority beginning with the Eurodollar Loan with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Loan with the most number of days remaining in the Interest Period applicable thereto. Prepayments pursuant to this Section 2.4(c)(iii) shall be accompanied by break funding payments to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in required by Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement2.9.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Hi-Crush Inc.)
Mandatory. (i) In On any date (A) on which a cash equity contribution is deposited in the event Borrower Collateral Account as a result of a loan made by First Gibraltar to the Borrower Parent pursuant to the terms of the First Gibraltar Loan Agreement or on which a deposit of amounts paid under or in connection with any termination Related Documents is made to the Mafco Collateral Account or on which a deposit of all amounts constituting Net Cash Proceeds from an Asset Sale is made to the Mafco Collateral Account and (B) either (I) a Default has occurred and is continuing, (II) the Borrower fails to deliver a Look-Forward Certificate or a Deposit Certificate with respect to such deposit in accordance with the terms of section 5.01(k) or (III) the Marvel IV Required Lenders determine, in their reasonable discretion, within 15 Business Days following the date of the receipt of the Look-Forward Certificate or within 2 Business Days following the date of the receipt of Deposit Certificate, as the case may be, referred to in clause (B)(II), that the pro forma amounts available to be loaned by First Gibraltar to Borrower Parent, together with amounts received by Mafco pursuant to or in connection with any Related Document, will be less than $8 million in any calendar quarter or will not be sufficient to pay interest on the Advances then outstanding, the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans Facilities shall be automatically and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings at any time exceed the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in permanently reduced by an aggregate amount equal to the excess of (x) the amount of such excess; providedcash equity contribution or the amount on deposit in the Mafco Collateral Account, howeveras the case may be, that plus any interest on Collateral Investments made with such contribution or deposit over (y) the Borrower sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable. Each such reduction of the Facilities shall not be required applied ratably first to Cash Collateralize the L/C Obligations pursuant Tranche A Revolving Credit Facility and second to this the Tranche B Revolving Credit Facility. Each such reduction of a Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Facility. Any such amounts remaining after the foregoing application shall be applied as set forth in Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the Total Outstandings exceed the Total Revolving Term Credit Commitments then in effectAgreement.
(ii) Not later The Revolving Credit Facilities shall be automatically and permanently reduced:
(A) on the date of receipt by any A Company of the Net Cash Proceeds of issuances, sales or liquidations of any capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock) of any A Company (other than the fifth Business Day following the completion (x) any Net Cash Proceeds in respect of any Asset Sale and/or not later than and (y) the tenth Business Day following preferred stock to be issued by FN Holdings in exchange for the occurrence preferred stock of FN Escrow upon consummation of the merger of FN Escrow with and into FN Holdings which preferred stock will be redeemed in full concurrently with or immediately after the consummation of such merger),
(B) on the date of receipt by any A Company of any Recovery Event dividends, other distributions or any loans or advances made in respect of the capital stock of any other A Company (other than FN Holdings and FN Parent) (provided that this clause (B) shall not apply to the receipt by any A Company of any dividends, other distributions or any loans or advances made in respect of all or any portion of the proceeds received by Mafco or any of its Subsidiaries from any Asset Sale or any sale, lease, transfer or other disposition specified in clauses (i) through (v) of the definition of "Asset Sale",
(C) on the date of receipt by any A Company of the proceeds of distributions, dividends or any loans or advances made on account of or as a result of the issuance, sale or liquidation of any capital stock (including any securities convertible into or exchangeable for capital stock or any warrants, rights or options to acquire capital stock but excluding any Asset Sale) of, or the sale, issuance or incurrence of any Debt by, any Designated Operating Company, and
(D) on the date of receipt by any A Company of the Net Cash Proceeds from the sale, issuance or incurrence by any A Company of any Debt (other than any sale, issuance or incurrence by Revlon Holdings Inc. of any Debt to any of its Subsidiaries), by an amount equal to the excess of (x) the amount so received (except, in each case, to the extent (1) required pursuant to the terms of any agreement or instruments relating to Debt existing on the date hereof or otherwise approved by the Marvel IV Required Lenders of any A Company or Designated Operating Company to prepay or redeem or purchase such Debt or (2) prohibited to be so applied by the terms of any agreement or instrument relating to Debt existing on the date hereof or otherwise approved by the Marvel IV Required Lenders of any A Company or Designated Operating Company) over (y) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable. Each such reduction of the Revolving Credit Facilities shall be applied ratably first to the Tranche A Revolving Credit Facility and second to the Tranche B Revolving Credit Facility. Each such reduction of a Revolving Credit Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Facility. Any such amounts remaining after the foregoing application shall be applied as set forth in Section 2.05(b)(ii) of the Term Credit Agreement.
(iii) On the date of receipt by Mafco or any of its Subsidiaries (other than the Bank and its Subsidiaries) of the Net Cash Proceeds resulting therefromfrom the sale, transfer or other disposition of (x) all or any portion of the capital stock of the Bank (other than any issuance by the Bank or any Subsidiary of the Bank of capital stock) or (y) any asset of the Bank, the Borrower Revolving Credit Facilities shall apply be automatically and permanently reduced by an amount equal to the Required Prepayment Percentage excess of (A) such Net Cash Proceeds (other than the portion of such Net Cash Proceeds received with required to be paid to the holders of the Class B common stock of FN Holdings and the holders of the FN Holdings Preferred Stock) over (B) the sum of the amount of interest and fees then due and payable in respect thereto of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to prepay outstanding Loans and/or Cash Collateralize Letters the Administrative Agent) then due and payable. Each such reduction of the Revolving Credit Facilities shall be applied ratably first to the Tranche A Revolving Credit Facility and second to the Tranche B Revolving Credit Facility. Each such reduction of the Revolving Credit Facilities shall be made ratably among the Appropriate Lenders in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously their Commitments with (and in any event not later than the fifth Business Day next following) the occurrence of respect to such Specified Equity Issuance and the receipt of Revolving Credit Facility. Any Net Cash Proceeds resulting therefrom, apply remaining after the Required Prepayment Percentage foregoing application shall be applied as set forth in Section 2.05(b)(iii) of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of the Term Credit in accordance with Section 2.05(b)(vii)Agreement.
(iv) In On the event that any Loan Party date of receipt by Mafco or any Subsidiary of its Subsidiaries, on or prior to the later of the Tranche B Termination Date and the Term Credit Agreement Termination Date, of the Net Cash Proceeds from any Asset Sale (other than the sale, disposal or other monetization of the News Corp. Preferred ADRs or the New Marvel Shares), the excess of (A) such Net Cash Proceeds over (B) the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable shall be applied ratably first to the automatic and permanent reduction in full of the Tranche B Revolving Credit Facility and second to the prepayment of the Tranche A Revolving Credit Facility as set forth in Section 2.06(b)(iii). Each such reduction or prepayment of a Loan Party Revolving Credit Facility shall receive be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Facility. Any Net Cash Proceeds remaining after the foregoing application shall be applied as set forth in Section 2.05(b)(iv) of the Term Credit Agreement.
(v) On the date of receipt by Mafco or any of its Subsidiaries, on or prior to the later of the Tranche B Termination Date and the Term Credit Agreement Termination Date, of the Net Cash Proceeds from the issuance sale, disposal or other incurrence monetization of Indebtedness of any Loan Party the News Corp. Preferred ADRs or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02)the New Marvel Shares, the Borrower shall, substantially simultaneously with excess of (and in any event not later than the fifth Business Day next followingA) the receipt of such Net Cash Proceeds by over (B) the sum of (1) the amount of interest and fees then due and payable in respect of the Facilities plus (2) the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent) then due and payable plus (3) the aggregate amount paid (including the aggregate amount of interest, fees and expenses then due and payable in respect of the Term Facilities) from such Loan Party Net Cash Proceeds pursuant to the terms of Section 2.05(b)(v) of the Term Credit Agreement shall be applied first to the permanent reduction in full of the Tranche B Revolving Credit Facility and second to the prepayment of the Tranche A Revolving Credit Facility as set forth in Section 2.06(b)(iv). Each such reduction or prepayment of a Revolving Credit Facility shall be made ratably among the Appropriate Lenders in accordance with their Commitments with respect to such SubsidiaryRevolving Credit Facility.
(vi) On and after the date (occurring after the later of the Tranche B Termination Date and the Term Credit Agreement Termination Date), apply on which Mafco and its Subsidiaries have received Net Cash Proceeds in an amount equal to the Required Prepayment Percentage Asset Sale Threshold from Asset Sales, upon any Asset Sale in respect of such which Mafco and its Subsidiaries have received Net Cash Proceeds to prepay outstanding Loans and/or (which, together with the aggregate amount of Net Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days Proceeds from and after the end of each fiscal year of Effective Date from Asset Sales, exceeds the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(aAsset Sale Threshold), the Borrower Tranche A Revolving Credit Facility shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in be automatically and permanently reduced by an aggregate principal amount equal to the Required Prepayment Percentage excess of Excess (x) 50% of that portion of the Net Cash Flow for Proceeds in excess of the fiscal year then ended less Asset Sale Threshold (after taking into account the aggregate amount of all Voluntary Prepayments during Net Cash Proceeds from and after the Effective Date from Asset Sales) from such fiscal year.
Asset Sale over (viy) The Borrower shall deliver the sum of the amount of interest and fees then due and payable in respect of the Facilities plus the amount of expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer then due and payable. Each such reduction of the Borrower setting forth Tranche A Revolving Credit Facility shall be made ratably among the Appropriate Lenders in reasonable detail the calculation of the amount of such prepayment and (ii) accordance with their Commitments with respect to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penaltyTranche A Revolving Credit Facility.
(vii) Mandatory prepayments under sub-paragraphs (ii)On each date that an Event of Default set forth in Section 6.01(a) shall have occurred and be continuing, (iii), (iv) and (v) of this Section the Revolving Credit Facilities shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) automatically and permanently reduced by an amount equal to the full extent thereof excess of (and x) the corresponding accrued and unpaid amount on deposit in the Second Mafco Collateral Account over (y) the sum of the amount of interest and fees on then due and payable in respect of the principal Facilities plus the amount of Term Loans so prepaid), subject expenses of the Administrative Agent (including the reasonable fees and expenses of counsel to the provisions of sub-paragraph (viiiAdministrative Agent) below then due and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding payable. Each such reduction of the Revolving Credit Commitments; and third, at any time when there Facilities shall be no Term Loans outstanding, applied ratably first to Cash Collateralize any outstanding Letters of the Tranche A Revolving Credit (up Facility and second to an aggregate amount equal to 105% of the aggregate undrawn face amount of all Tranche B Revolving Credit Facility. Each such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by Facilities shall be made ratably among the Borrower to be used Appropriate Lenders in accordance with their Commitments with respect to such Revolving Credit Facility. Any amounts remaining on deposit in the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement Second Mafco Collateral Account after the foregoing application shall be applied pro rata against as set forth in Section 2.05(b)(vi) of the remaining scheduled installments Term Credit Agreement. If an Event of principal Default set forth in Section 6.01(a) shall occur and be continuing at the same time as an "Event of Default" set forth in Section 6.01(a) of the Term Credit Agreement shall occur and be continuing, such amount (less the sum of (1) the amount of interest and fees then due and payable in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, Facilities plus (2) the amount of such mandatory prepayment shall be applied (A) in the case expenses of the applicable principal amount "Administrative Agent" under the Term Credit Agreement (including the reasonable fees and expenses of the Tranche B Term Loans being so prepaid, first counsel to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to the Administrative Agent by facsimile at least eight Business Days prior to the applicable prepayment date, to decline all of any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan 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 by facsimile within two Business Days of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this Agreement.such
Appears in 1 contract
Sources: Revolving Credit Agreement (Andrews Group Inc /De/)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Revolving Credit Outstandings in respect of the Facility at any time exceed exceeds the Total Revolving Credit Commitments then in effectLoan Cap, the Borrower Borrowers shall immediately prepay all outstanding repay the Revolving Credit Loans and all outstanding Swing Line Loans (including the Swingline Loans) and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, provided that (i) the Borrower Borrowers 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 Credit Loans and Swing Line Loans the Total Outstandings exceed (including all Swingline Loans) the Total Revolving Credit Commitments then Outstandings in effectrespect of the Facility exceed the Loan Cap and (ii) if such excess is due to a change in the eligibility criteria by the Administrative Agent hereunder or the imposition of a new or increased reserve, such payment shall be due within three (3) Business Days.
(ii) Not later than Each Loan Party hereby irrevocably waives the fifth Business Day following right to direct, during a Cash Dominion Period, the completion application of all funds in each Cash Collateral Account and agrees that, subject to the ABL Intercreditor Agreement, the Administrative Agent (A) may or, upon the written direction of the Required Lenders at any time during such Cash Dominion Period, shall deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (B) shall, subject to Section 2.19, during a Cash Dominion Period, except as provided in Section 8.04, apply all payments in respect of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, Obligations and all available funds in each caseCash Collateral Account on a daily basis as follows: first, to repay the receipt outstanding principal balance of Net the Swingline Loans until the Swingline Loans shall have been repaid in full; second, to repay the outstanding principal balance of the Revolving Credit Loans until the Revolving Credit Loans shall have been repaid in full; and then to any other Obligation owing by any Borrower or any other Loan Party then due and payable. If (1) following such application, (2) outside of a Cash Proceeds resulting therefrom, the Borrower shall apply the Required Prepayment Percentage of such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Dominion Period or (3) after all Letters of Credit shall have expired or been fully drawn and all Commitments shall have been terminated, there are no Loans outstanding and no other Obligations that are then due and payable (and, during a Cash Dominion Period, Cash Collateral has been provided in accordance with an amount equal to 103% of the L/C Obligations in the manner required in Section 2.05(b)(vii2.16), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Accounts to be paid at the written direction of the Borrowers (or, in the absence of such direction, to the Borrowers or another Person lawfully entitled thereto).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(v) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, commencing with the fiscal year ending on December 31, 2007, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 7.01(a), the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (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, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to under this Section 2.05 shall be subject to Section 3.05made together with, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of any such prepayment of a SOFR Rate Loan on a date other than the applicable principal amount last day of an Interest Period therefor, any amounts owing in respect of such SOFR Rate Loan pursuant to Section 3.06. Notwithstanding any of the Tranche B Term Loans being other provisions of this Section 2.05(b)(iii), so prepaidlong as no Event of Default shall have occurred and be continuing, first to Tranche B Term Loans that are Base if any prepayment of SOFR Rate Loans is required to be made under this Section 2.05(b)(iii), other than on the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans last day of the Interest Period therefor, any Borrower may, in a manner that minimizes its sole discretion, deposit the amount of any payments such prepayment otherwise required to be made by thereunder into a Cash Collateral Account until the Borrower pursuant to Section 3.05 and (B) in the case last day of the applicable principal amount of the Tranche C Term Loans being so prepaidsuch Interest Period, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice to at which time the Administrative Agent shall be authorized (without any further action by facsimile at least eight Business Days prior or notice to or from the Borrowers or any other Loan Party) to apply such amount to the applicable prepayment date, to decline all of any prepayment of its Term such Loans pursuant in accordance with this Section 2.05(b)(iii) (it being agreed, for clarity, that interest shall continue to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case accrue on the aggregate Loans so prepaid until the amount of the prepayment that would have been so deposited is actually applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepaymentLoans). In Upon the event occurrence and during the continuance of such a re-offerany Event of Default, the relevant Lenders may elect, by notice to the Administrative Agent shall also be authorized (without any further action by facsimile within two Business Days of receiving notification of or notice to or from the Borrowers or any other Loan Party) to apply such re-offer, amount to decline all the prepayment of the 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 Term outstanding Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementSection 2.05(b)(iii).
Appears in 1 contract
Sources: Abl Credit Agreement (V2X, Inc.)
Mandatory. (i) In the event of any termination of all of the Revolving Credit Commitments, If the Borrower shall, on the date of such termination, repay or prepay all outstanding Revolving Credit Loans and all outstanding Swing Line Loans and replace all outstanding Letters of Credit and/or Cash Collateralize the L/C Obligations in a cash collateral account established with the Collateral Agent for the benefit of the Secured Parties in the manner described in Section 2.03(g). If for any reason the Total Outstandings Restricted Subsidiary shall at any time exceed or from time to time make a Disposition or shall suffer an Event of Loss, then the Total Revolving Credit Commitments then Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in effectrespect thereof) and, within five Business Days after the receipt of such Net Cash Proceeds, the Borrower shall immediately prepay all outstanding Revolving Credit the relevant Term Loans and all outstanding Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such excessNet Cash Proceeds; provided, however, provided that the Borrower this subsection shall not be required require any such prepayment with respect 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 and Swing Line Loans the Total Outstandings exceed the Total Revolving Credit Commitments then in effect.
(ii) Not later than the fifth Business Day following the completion of any Asset Sale and/or not later than the tenth Business Day following the occurrence of any Recovery Event and, in each case, the receipt of Net Cash Proceeds resulting therefrom, (y) received on account of Dispositions during any Fiscal Year of the Borrower shall apply not exceeding $2,500,000 in the Required Prepayment Percentage aggregate or received on account of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate and (z) in the case of any Disposition or Event of Loss not covered by clause (y) above, so long as no Event of Default has occurred and is continuing, if the Borrower (A) actually reinvests such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds received with respect thereto to prepay outstanding Loans and/or Cash Collateralize Letters are actually reinvested in such assets or (B) states in a notice delivered within 12 months of Credit in accordance with Section 2.05(b)(vii).
(iii) In the event and on each occasion that a Specified Equity Issuance occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the occurrence of such Specified Equity Issuance and the receipt of Net Cash Proceeds resulting therefrom, apply the Required Prepayment Percentage of such Net Cash Proceeds therefrom to prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii).
(iv) In the event that any Loan Party or any Subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 8.02), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds by such Loan Party in assets that perform the same or such similar function in the business of the Borrower or a Restricted Subsidiary, apply an amount equal to the Required Prepayment Percentage extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 12-month or 18-month period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has reinvested such Net Cash Proceeds in such assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment shall be applied to prepay the relevant outstanding Term Loans and/or Cash Collateralize Letters of Credit in accordance with this Section 2.05(b)(vii1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 hereof (including Indebtedness issued or incurred under Sections 1.16, 1.18 and 1.19 (but excluding Section 1.20 or any Indebtedness incurred as a Permitted Refinancing of all or a portion of existing Term Loans of any Class)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans in accordance with this Section 1.9 until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 hereof or any other terms of the Loan Documents.
(iii) The Borrower shall, on each date any Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, pre-fund the L/C Obligations (or make other arrangements reasonably satisfactory to the L/C Issuer) by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans, and U.S. Dollar Equivalent of all L/C Obligations then outstanding with respect to such Class to the amount to which such Revolving Credit Commitments have been so reduced.
(iv) Unless the Borrower otherwise directs, prepayments of Loans of any type under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.9(b) shall be made by the payment of the principal amount to be prepaid and accrued interest thereon to the date of prepayment together with any amounts due to the Lenders under Section 1.12 hereof.
(v) No later than If at any time the earlier of (i) 90 days after the end of each fiscal year sum of the Borrowerunpaid principal balance of the Revolving Loans, commencing with the fiscal year ending on December 31, 2007Swing Loans, and (ii) the date on which U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be in excess of the financial statements with respect to Revolving Credit Commitments of such period are delivered pursuant to Section 7.01(a)Class in effect at such time, the Borrower shall prepay outstanding Loans and/or Cash Collateralize Letters of Credit in accordance with Section 2.05(b)(vii), in an aggregate principal amount equal to the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended less the aggregate amount of all Voluntary Prepayments during such fiscal year.
(vi) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.05(b), (i) a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of immediately and without notice or demand pay over the amount of such prepayment and (ii) to the extent practicable, at least 10 Business Days prior written notice of such prepayment (and the Administrative Agent shall promptly notify each Lender). Each notice of prepayment shall specify the prepayment date, the Class and Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings pursuant to this Section 2.05 shall be subject to Section 3.05, but shall otherwise be without premium or penalty.
(vii) Mandatory prepayments under sub-paragraphs (ii), (iii), (iv) and (v) of this Section shall be applied: first, to prepay outstanding Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Term Loans so prepaid), subject to the provisions of sub-paragraph (viii) below and any re-offer described therein; second, at any time when there shall be no Term Loans outstanding, to prepay outstanding Revolving Loans to the full extent thereof (and the corresponding accrued and unpaid interest and fees on the principal amount of Revolving Loans so prepaid), with no corresponding reduction of the Revolving Credit Commitments; and third, at any time when there shall be no Term Loans outstanding, to Cash Collateralize any outstanding Letters of Credit (up to an aggregate amount equal to 105% of the aggregate undrawn face amount of all such Letters of Credit) as described in Section 2.03(g), with no corresponding reduction of the Revolving Credit Commitments; with any remaining amounts being retained by the Borrower to be used in accordance with the provisions of this Agreement.
(viii) Mandatory prepayments of outstanding Term Loans under this Agreement shall be applied pro rata against the remaining scheduled installments of principal due in respect of the Tranche B Term Loans and Tranche C Term Loans pursuant to Section 2.07. Such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are Base Rate Loans or Eurocurrency Rate Loans; provided that if no Lenders decline a given mandatory prepayment of the Term Loans as described below, then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied (A) in the case of the applicable principal amount of the Tranche B Term Loans being so prepaid, first to Tranche B Term Loans that are Base Rate Loans to the full extent thereof before application to Tranche B Term Loans that are Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05 and (B) in the case of the applicable principal amount of the Tranche C Term Loans being so prepaid, first to Tranche C Term Loans that are Eurocurrency Rate Loans with an Interest Period of one month to the full extent thereof before application to Tranche C Term Loans that are Eurocurrency Rate Loans with a longer Interest Period in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 3.05. Notwithstanding anything herein to the contrary, any Term Loan Lender may elect, by notice excess to the Administrative Agent by facsimile at least eight Business Days prior for the account of the Revolving Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the applicable prepayment date, to decline all of Revolving Loans and Swing Loans until paid in full with any prepayment of its Term Loans pursuant to sub-paragraphs (ii), (iii), (iv) or (v) of this Section, in which case the aggregate amount of the prepayment that would have been applied to prepay such Term Loans but was so declined shall be re-offered to those Term Loan Lenders under this Agreement who have initially accepted such prepayment (such re-offer remaining balance to be made to each such Term Loan Lender based on the percentage which such Term Loan Lender’s Term Loans represents of the aggregate Term Loans of all such Term Loan Lenders who have initially accepted such prepayment). In the event of such a re-offer, the relevant Lenders may elect, held by notice to the Administrative Agent by facsimile within two Business Days in the Collateral Account as security for the Obligations owing with respect to the Letters of receiving notification of such re-offer, to decline all of the 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 Term Loans pursuant to such re-offer but was so declined may be retained by the Borrower to be used in accordance with the provisions of this AgreementCredit.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)