Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents. (iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full. (iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) If Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition of its Subsidiaries (other than a Sale/Leaseback Transaction with any Excluded Joint Venture) in respect of its property or assets, after the first $50,000,000 of Net Cash Proceeds relating to a Principal Owned Property which shall be subject to subsection (iii) below) any Extraordinary Receipts in the aggregate since the Restatement Closing Date, and thereafter any amount in excess of $5,000,000 for any one event or shall suffer an Event series of Lossrelated events, then the Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the prepay an aggregate principal amount of the estimated Loans equal to 100% of all Net Cash Proceeds to be received therefrom within three Business Days after the date of receipt thereof by the Borrower or any Restricted such Subsidiary subject to the provisions of Section 2.05(b)(vix) (such prepayments to be applied as set forth in clause (iiiv) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the assets or property in respect thereofof which the Extraordinary Receipt was received, it shall deliver written notice of such intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Net Cash Proceeds, (B) andif the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested so long as within five (5) Business Days 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or unreasonably delayed, and is substantially completed within 12 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12‑month period that it reasonably expects completion to occur within such additional 12‑month period) and (C) within 10 days of the date the Borrower consummates such restoration, repair or replacement or purchase, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(i); provided further that any Net Cash Proceeds not so reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(ii) (ii) If the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) Disposes of any property (other than any Disposition of any property permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) or (k)) which results in the realization by such Person of Net Cash Proceeds, after the first $10,000,000 of Net Cash Proceeds relating to any such Dispositions in the aggregate since the Restatement Closing Date, and thereafter any amount in excess of $2,500,000 for any one event of series of related events, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate principal amount of Loans equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 provisions of Section 8.7 or any other terms of the Loan Documents.
(iii2.05(b)(vix) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred prepayments to herein be applied as a “Prepayment Sale/Leaseback Transaction”set forth in clause (iiiv) below), in either case when the Total Leverage Ratio on a Pro-Forma Basis ; provided that so long as no Default shall have occurred and be continuing and after giving pro forma effect to such Prepayment Sale/Leaseback Transaction and Disposition, but excluding the application proceeds of such Disposition for the purposes of netting cash on hand in the calculation of the Consolidated Leverage Ratio, the Consolidated Leverage Ratio would not be greater than or equal to 5.00:1.00 as of the end of the fiscal quarter most recently ended for which a Compliance Certificate has been delivered, on a pro forma basis for such transaction, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof as in capital assets used or useful in the business (a “Reinvestment”), it shall deliver written notice of such intention to the last day of the most recently ended fiscal quarter for which financial statements are available Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Net Cash Proceeds, (B) if the Borrower shall promptly notify have delivered such notice, the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to thereof may be received by the Borrower or any Restricted Subsidiary in respect thereof) and, reinvested so long as within five (5) Business Days 12 months after the receipt of such Net Cash ProceedsProceeds such reinvestment shall have begun and so long as such reinvestment has not been terminated, the Borrower shall prepay first, the relevant Term Loansabandoned or unreasonably delayed, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, is substantially completed within nine 12 months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end date of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount receipt of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to (provided that if the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction project is not substantially completed within 12 months after such date of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdingsreceipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12‑month period that it reasonably expects completion to occur within such additional 12‑month period) and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess (C) within 10 days of $100,000,000, then the date the Borrower consummates such reinvestment, it shall promptly (and in any event within two (2) Business Days) apply such amounts in excess deliver a certificate of $100,000,000 first, a Responsible Officer to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.the
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary of its Wholly-owned Subsidiaries shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 5,000,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofthen exists. Promptly after the end of such 12-month or 18-month period, as applicable, the The Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has reinvested also make 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvestedprepayments as may be required under Section 4.8 hereof. The amount of each such prepayment shall be applied first to the relevant outstanding Term Swing Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 shall incur any additional Subordinated Debt or the Borrower or any Restricted Wholly-owned Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (including Indebtedness equity securities issued in connection with the exercise of employee 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))director stock options, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or issuance to be received by or incurrencefor the account of the Borrower or such Wholly-owned Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Wholly-owned Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall apply 100% of the amount of such Net Cash Proceeds shall be applied by first to the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction prepayment of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 outstanding Swing Loans, until paid in full, second to the prepayment of the Revolving Loans, until paid in full, and then to the prefunding of all L/C Obligations. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 8.11 (Maintenance of Subsidiaries) or Section 9.1(j) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If The Borrower shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time Revolving Credit Commitments are reduced pursuant to time enter into a SaleSection 1.12 hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, prefund the L/Leaseback Transaction with respect C Obligations by the amount, if any, necessary to a Principal Owned Property or sell reduce the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application sum of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) andRevolving Loans, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Swing Loans, and second, L/C Obligations then outstanding to the relevant Revolving Loans, together with a commensurate permanent reduction of amount to which the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, to the extent such Net Cash Proceeds Commitments have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullreduced.
(iv) At If at any time the end of any Business Day from and after the Second Amendment Effective Date until the end sum of the Basket Suspension Periodunpaid principal balance of the Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondthe L/C Obligations then outstanding shall be in excess of the Borrowing Base as then 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 prepay outstanding 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 and Swing Loans 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 Credit.
(v) Prepayments of Loans under this Section 1.8(b) or Section 4.8 hereof shall be applied first to Swing Loans, until payment in full thereof, second to all other Borrowings of Base Rate Loans until payment in full thereof, and third 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 Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the any Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) belowDispositions permitted under Section 6.13(r)) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers, then (x) the Borrower Borrowers 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 such Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by such Borrower or such Subsidiary of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrowers state in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrowers’ notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof365-day period. Promptly after the end of such 12365-month or 18-month day period, as applicable, the Borrower Borrowers shall notify the Administrative Agent whether the such Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrowers’ notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrowers not so invested or reinvested. The amount of each such prepayment shall be applied then to the relevant outstanding Term U.S. Revolving Loans and the Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and the Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof).
(ii) If after the Closing Restatement Effective Date the any Borrower or any Restricted Subsidiary shall issue any new equity securities (other than equity securities issued to any director, manager, or employee as part of an employee incentive program, equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and, so long as no Event of Default exists at the time of any such issue, any Designated Canadian Equity Issuances, if any) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant Term U.S. Revolving Loans and the relevant Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof). The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If The Borrowers shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time U.S. Revolving Credit Commitments are reduced pursuant to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell Section 2.9, prepay the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property HoldcoU.S. Revolving Loans and, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)if necessary, U.S. Swing Loans and, if necessary, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application accordance with Section 4.5, Cash Collateralize 103% of the Net Cash Proceeds thereof as then-outstanding U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant U.S. Revolving Loans, together with a commensurate permanent reduction of U.S. Swing Loans and U.S. L/C Obligations then outstanding to the relevant amount to which the Commitments have been so reduced; and the Borrowers shall, on each date the Canadian Revolving Credit CommitmentsCommitments are reduced pursuant to Section 2.9, prepay the Canadian Revolving Loans and, if necessary, Canadian Swing Loans and, if necessary, in an aggregate amount equal to 100accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of all such Net Cash Proceeds; providedCanadian Revolving Loans, that this subsection (iii) shall not require any prepayment of Term Canadian Swing Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Saleand Canadian L/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, C Obligations then outstanding to the extent such Net Cash Proceeds amount to which the Commitments have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.reduced; and
(iv) At Unless the end Borrowers otherwise direct, prepayments of Loans under this Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans and Canadian Prime Rate Loans, as the case may be, until payment in full thereof with any balance applied to Borrowings of EurodollarTranche Rate Loans and Canadian CDOR Loans, as the case may be, in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing EurodollarTranche Rate Loans or Canadian CDOR Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If the Subject to clause (vii) below, if either Borrower or any Restricted Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Fiscal Year, then (x) the Borrower Borrowers shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the such Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by such Borrower or such Subsidiary of the receipt Net Cash Proceeds of such Net Cash ProceedsAsset Disposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Asset Disposition and Event of Loss, if the Borrowers state in such notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrowers’ notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereoftwelve (12) month period. Promptly after the end of such twelve (12-month or 18-) month period, as applicable, the Borrower Borrowers shall notify the Administrative Agent whether the such Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrowers’ notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above 1,000,000 not so invested or reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and Revolving Loans (with a permanent reduction held by it in the Collateral Account. So long as no Default or Event of Default exists, the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAdministrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrowers’ direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If Subject to clause (vii) below, if after the Closing Date the either Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than that permitted by Section 7.1 (other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 Class7.1(m)), the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds assumption to be received by or for the account of such Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after the . Promptly upon receipt by such Borrower or such Subsidiary of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if such issuance, incurrence or assumption the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower Borrowers shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionProceeds. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans Loans. The Borrowers acknowledge that their performance hereunder shall not limit the rights and Revolving Loans (with a permanent reduction remedies of the relevant Revolving Credit Commitments) in accordance with Administrative Agent or the Lenders for any breach of Section 7.1 or any other terms of this Section 1.9 until paid in fullAgreement.
(iviii) At Subject to clause (vii) below, on or before April 30th of each year, beginning April 30, 2018, the end Borrowers shall prepay the then‑outstanding Loans by an amount equal to 50% of any Business Day from and after Excess Cash Flow of the Second Amendment Effective Date until Borrowers on a Consolidated basis for the most recently completed Fiscal Year; provided that, no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of the end of the Basket Suspension Period, if Holdings, two consecutive fiscal quarters of the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Borrowers immediately preceding the date such Excess Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing LoansFlow payment would otherwise be required under this Section 2.8(b)(iii), and second, the Borrowers have delivered to prepay the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or Event of Default has occurred and is continuing on April 30th of such year when the Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied to the outstanding Revolving Loans.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Turning Point Brands, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or a Subsidiary intends to reinvest, 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 not covered by clause (x) aboveLoss, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day 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 similar assets, and, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, Loans (or all outstanding Loans and second, the relevant Revolving Loans, together with a commensurate permanent reduction L/C Obligations if an Event of the relevant Revolving Credit Commitments, Default exists) in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvested. The amount 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 each such prepayment Disposition or Event of Loss shall be applied deposited with the Administrative Agent and held by it in 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 relevant outstanding Term Loans and Revolving Loans (with a permanent reduction Collateral Account to or at the Borrower’s direction for application to or reimbursement for the costs of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullreplacing, rebuilding or restoring such Property.
(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 (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))hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby 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 shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullProceeds. 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 Restricted Subsidiary shall at receive any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period “Employer Reversion” (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), defined in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application Section 4980(c)(2) of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Code), the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received amount. Promptly upon receipt by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceedsamount, and after deduction for all income, excise and other federal, state and local taxes, penalties and interest due with respect to such Employer Reversion under the Code or any other applicable law, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the net amount of all after such Net Cash Proceeds; provided, that this subsection deductions.
(iiiiv) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly If after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether Closing Date the Borrower or a Restricted any Subsidiary has so reinvested such Net Cash Proceeds shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in such assets, and, connection with the exercise of employee stock options and capital stock issued to the extent such Net Cash Proceeds have not been so reinvestedseller 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 relevant Term Loans or Revolving Loans in an aggregate amount equal to 75% of the amount of such Net Cash Proceeds received from Proceeds.
(v) The Borrower shall, on each date the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) Commitments are reduced pursuant to Section 1.12 hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, prefund the L/C Obligations in accordance with this Section 1.9 until paid in full.
(iv) At 9.4 by the end of any Business Day from and after amount, if any, necessary to reduce the Second Amendment Effective Date until the end sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondL/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(b) shall be applied first to prepay outstanding Revolving LoansBorrowings 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 1.8(b) shall be made by the payment of the principal amount to be prepaid and accrued interest thereon to the date of prepayment and, in the case of any Eurodollar Loan or Swing Loan, together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Sources: Credit Agreement (CTS Corp)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents within six months following receipt of such Net Cash Proceeds, and (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvestedthen exists. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then, to the extent that an Event of Default then exists, applied to cash collateralize the Letters of Credit. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Loans of the several Lenders based on the principal amounts thereof.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness equity securities issued to officers, directors or employees of the Borrower as compensation for Borrowed Money permitted bona fide services provided or to be provided to the Borrower by Section 8.7 (including Indebtedness such persons and approved by the Borrower’s Board of Directors or the Compensation Committee of the Borrower’s Board of Directors, as the case may be or in connection with the exercise of employee stock options and capital stock of the Borrower issued or incurred under Sections 1.16, 1.18 and 1.19 (but excluding Section 1.20 or any Indebtedness incurred as to the seller of an Acquired Business in connection with a Permitted Refinancing of all or a portion of existing Term Loans of any Class))Acquisition, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100the Borrower shall prepay the outstanding Revolving Loans until paid in full, in an aggregate amount equal to 50% of the amount of such Net Cash Proceeds and then, to the extent that an Event of Default then exists, applied to cash collateralize the Letters of Credit. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Loans 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 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) 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)-(h) 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 to or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant Term Loans and the relevant outstanding Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds and then, to the extent that an Event of Default then exists, applied to cash collateralize the Letters of Credit. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Loans 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 the Loan Documents.
(iiiiv) If The Borrower shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time Revolving Credit Commitments are reduced pursuant to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell Section 1.12 hereof, prepay the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction Swing Loans and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the relevant aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit CommitmentsCommitments have been so reduced.
(v) The Borrower shall, promptly upon receipt of any proceeds from any repayment of the Philadelphia School Loan, prepay first the outstanding Revolving Loans until paid in full and then, to the extent that an Event of Default then exists, applied to cash collateralize the Letters of Credit, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionproceeds. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Loans of the several Lenders based on the principal amounts thereof.
(vi) 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 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 Eurodollar Loans or Swing Loans, accrued interest thereon to the relevant outstanding Term date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
(vii) For the avoidance of doubt, any prepayment of Loans and Revolving Loans (with a permanent reduction or any cash collateralization of Letters of Credit under this Section 1.8(b) shall not reduce the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If No later than the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event first Business Day following the date of Loss, then the 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 receipt by the Borrower or any Restricted Subsidiary of its Subsidiaries of any Net Cash Proceeds in respect excess of $5,000,000 in any 12 consecutive month period ("Excess Net Cash Proceeds"), the Borrower shall prepay the Advances in an aggregate amount equal to such Excess Net Cash Proceeds. Notwithstanding the foregoing, as long as no Default shall have occurred and be continuing, the Borrower shall not be required to make any mandatory prepayment pursuant to this Subsection 2.04(b)
(i) 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) and, within five (5) no later than the first Business Days after the Day following receipt of such Excess Net Cash Proceeds, the Borrower shall prepay first, deliver an officers' certificate to the relevant Term Loans, and second, Administrative Agent demonstrating the relevant Revolving Loans, together with a commensurate permanent reduction derivation of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Excess Net Cash Proceeds and certifying the portion of such proceeds which the Borrower elects to reinvest in productive assets and certifying that no Default shall have occurred and be continuing and (x2) received on account upon the expiration of Dispositions during any Fiscal Year 180 days after the date of receipt of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 Excess Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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, certified as applicablebeing scheduled for reinvestment, the Borrower shall notify deliver to the Administrative Agent whether an officers' certificate indicating the Borrower or a Restricted Subsidiary has reinvested such amount of Excess Net Cash Proceeds reinvested as of such date, the assets in which such assets, and, to the extent such Excess Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such any remaining Excess Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment which shall be applied to prepay the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) Advances as set forth in accordance with this Section 1.9 until paid in fullSubsection 2.04(b)(i).
(ii) If after The Borrower shall prepay (A) all outstanding Advances, upon the Closing Date termination of the Equipment Purchase Agreement as a result of a default thereunder by 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 and (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 B) all or a portion of existing Term Loans the Advances which corresponds to the amount of any Class)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall refund required to be applied made by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) Ericsson 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 or any other terms of the Loan DocumentsEquipment Purchase Agreement.
(iii) If the Borrower or any Restricted Subsidiary All prepayments under this Section 2.04(b) shall at any time or from time to time enter into a Sale/Leaseback Transaction be made together with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior accrued interest to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including prepayment on the aggregate principal amount of prepaid and shall be applied pro rata between the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, outstanding Series A Advances and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment Series B Advances and shall be applied to reduce the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction scheduled principal installments of the relevant Revolving Credit Commitments) such Advances due pursuant to Section 2.03 hereof in accordance with this Section 1.9 until paid in fullinverse order of maturity.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Powertel Inc /De/)
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) If In the Borrower or event of any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 Debt Issuance by the Borrower or any of its Restricted Subsidiary in respect thereof) Subsidiaries on or after the Closing Date, then concurrently with receipt of Net Cash Proceeds of such Debt Issuance, the Borrower shall prepay an aggregate principal Document Number: 1345735 -40- amount of the Term Loans and, within five (5) Business Days after if so provided in the receipt Incremental Term Supplement applicable thereto, Incremental Term Loans equal to 100% of such Net 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 firstan aggregate principal amount of Term Loans and, if so provided in the relevant Incremental Term Supplement applicable thereto, Incremental Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Periodsuch Restricted Subsidiary; provided, in the case of any Disposition or Event of Loss not covered by clause (x) abovehowever, that, for so long as no Event of Default has shall have occurred and is be 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed 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 reinvest 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 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 be continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Proceeds (other than Net Cash Proceeds in connection with the Disposition of a Refinery) in assets that perform the same or similar function used in the business of the Borrower or its Subsidiaries, and in the case of any Excess Disposition Net Cash Proceeds that have not been reinvested within one year from the receipt thereof by the Borrower or such Subsidiary, the Borrower shall immediately upon the expiration of such one-year period, make an offer to the Lenders to prepay 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).
(iv) Upon a Disposition of (A) the El Paso Refinery as permitted under Section 7.05(c)(i), the Borrower shall prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in full, and (B) the Gallup Refinery as permitted under Section 7.05(c)(ii), 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 Net Cash Document Number: 1345735 -41- Proceeds (which amount shall be in compliance with clause (B) of Section 7.05(c)(ii)) received by the Borrower or such Restricted 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 extent terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such transaction or event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds are actually reinvested 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 assets within 18 months following time); provided, further, that (A) the receipt thereof. Promptly after the end portion 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, allocated to the extent such Net Cash Proceeds have Other Applicable Indebtedness shall not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in exceed 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 required to be applied allocated to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of Other Applicable Indebtedness pursuant to the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt terms thereof, 100% and the remaining amount, if any, of such Net Cash Proceeds shall be applied by allocated to the Borrower to prepay the relevant Term Loans and and, if so provided in the relevant Revolving Incremental Term Loan Supplement applicable thereto, Incremental Term Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 terms hereof to the prepayment of the Lenders for any breach of Section 8.7 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property HoldcoTerm Loans and, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00if applicable, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Incremental Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprepayment of the Term Loans and, if applicable, the Incremental Term Loans, that would have otherwise been required pursuant to this subsection (iiiSection 2.03(b) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such Net Cash Proceeds have not been so reinvestedindebtedness repurchased or prepaid, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the declined amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two ten (210) Business DaysDays after the date of such rejection) apply such amounts in excess of $100,000,000 first, be applied to prepay outstanding Swing Loansthe Term Loans and, and secondif so provided in the Incremental Term Loan Supplement applicable thereto, to prepay outstanding Revolving LoansIncremental Term Loans in accordance with the terms hereof.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) If the Parent, the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $1,000,000 (or the 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 any Restricted such Subsidiary in respect thereof) andand (y) promptly upon receipt by the Parent, within five (5) Business Days after the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds (or to all outstanding Loans and L/C Obligations if an Event of Default exists); provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Parent or the Borrower states in its notice of such event that the Parent, 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 not covered by clause (x) aboveLoss, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Parent, the Borrower or a Restricted such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvestedreinvested (or to all outstanding Loans and L/C Obligations if an Event of Default exists). The amount of each such prepayment shall be applied to on a ratable basis among the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction Obligations of the relevant Revolving Credit Commitments) several Lenders based on the principal amounts thereof. If a Default or Event of Default exists, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in accordance with this Section 1.9 until paid in fullthe 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 Parent, the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (including Indebtedness equity securities 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 in connection with the exercise of all or a portion of existing Term Loans of any Class))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 incurrencefor the account of the Parent, the Borrower or such Subsidiary in respect thereof. Within five 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 (5or to all outstanding Loans and L/C Obligations if an Event of Default exists) Business Days after receipt thereof, in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied on a 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 8.11 hereof or any other terms of this Agreement.
(iii) 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 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 to or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant Term Loans (or to all outstanding Loans and L/C Obligations if an Event of Default exists) in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the relevant Revolving Loans (with a permanent reduction outstanding Obligations of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullseveral 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 the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAgreement.
(iv) At The Borrower shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the Second Amendment Effective Date until Revolving Loans and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Period, if Holdingsaggregate 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 shall be in excess of the Borrowing Base as then determined and computed, the Borrower shall immediately and their Restricted Subsidiaries hold Unrestricted cash without notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and Cash Equivalents for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until payment in excess 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 $100,000,000Credit.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof, then to Borrowings of Eurodollar Loans in the Borrower order in which their Interest Periods expire, then to the Fixed Rate Loan. Each prepayment of Loans under this Section 1.9(b) shall promptly (and be made by the payment of the principal amount to be prepaid and, in the case of any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Term Loans, and secondthe Fixed Rate Loan or Eurodollar Loans, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with, in the case of any Eurodollar Loans or the Fixed Rate Loan, any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the any Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) belowDispositions permitted under Section 6.13(r)) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers, then (x) the Borrower Borrowers 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 such Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by such Borrower or such Subsidiary of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrowers state in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrowers’ notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof365‑day period. Promptly after the end of such 12-month or 18-month 365‑day period, as applicable, the Borrower Borrowers shall notify the Administrative Agent whether the such Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrowers’ notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrowers not so invested or reinvested. The amount of each such prepayment shall be applied then to the relevant outstanding Term U.S. Revolving Loans and the Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and the Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof).
(ii) If after the Closing Restatement Effective Date the any Borrower or any Restricted Subsidiary shall issue any new equity securities (other than equity securities issued to any director, manager, or employee as part of an employee incentive program, equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and, so long as no Event of Default exists at the time of any such issue, any Designated Canadian Equity Issuances, if any) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant Term U.S. Revolving Loans and the relevant Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof). The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If The Borrowers shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time U.S. Revolving Credit Commitments are reduced pursuant to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell Section 2.9, prepay the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property HoldcoU.S. Revolving Loans and, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)if necessary, U.S. Swing Loans and, if necessary, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application accordance with Section 4.5, Cash Collateralize 103% of the Net Cash Proceeds thereof as then-outstanding U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant U.S. Revolving Loans, together with a commensurate permanent reduction of U.S. Swing Loans and U.S. L/C Obligations then outstanding to the relevant amount to which the Commitments have been so reduced; and the Borrowers shall, on each date the Canadian Revolving Credit CommitmentsCommitments are reduced pursuant to Section 2.9, prepay the Canadian Revolving Loans and, if necessary, Canadian Swing Loans and, if necessary, in an aggregate amount equal to 100accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of all such Net Cash Proceeds; providedCanadian Revolving Loans, that this subsection (iii) shall not require any prepayment of Term Canadian Swing Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Saleand Canadian L/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, C Obligations then outstanding to the extent such Net Cash Proceeds amount to which the Commitments have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.reduced; and
(iv) At Unless the end Borrowers otherwise direct, prepayments of Loans under this Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans and Canadian Prime Rate Loans, as the case may be, until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans and Canadian CDOR Loans, as the case may be, in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Eurodollar Loans or Canadian CDOR Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (xy) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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) If The Borrower shall, on each date any Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the Borrower Revolving Loans, Swing Loans, and, if necessary, pre-fund the L/C Obligations (or any Restricted Subsidiary shall at any time or from time make other arrangements reasonably satisfactory to time enter into a Salethe L/Leaseback Transaction 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 a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior Class to the date amount to which such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, to the extent such Net Cash Proceeds Commitments have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullreduced.
(iv) At Unless the end Borrower otherwise directs, prepayments of Loans of any Business Day from and after 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 Second Amendment Effective Date until order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.9(b) shall be made by the end payment of the Basket Suspension Periodprincipal 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) If at any time the sum of the unpaid principal balance of the Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondthe U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be in excess of the Revolving Credit Commitments of such Class in effect at such time, the Borrower shall immediately and without notice or demand pay over the amount of the excess to prepay outstanding the Administrative Agent for the account of the Revolving LoansLenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) If the Borrower Upon receipt by any Loan Party or any Restricted Subsidiary shall at of its --------- Subsidiaries of Net Cash Proceeds from any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossAsset Disposition, then the Borrower shall promptly notify prepay the Administrative Agent then outstanding Advances in an amount equal to one- hundred percent (100%) of such Net Cash Proceeds payable concurrently with consummation of such Asset Disposition; provided that no such prepayment -------- need be made (1) unless the Net Proceeds from any single Asset Disposition or Event series of Loss related Asset Dispositions exceed $100,000 (including in which case a prepayment shall be made in the amount of the estimated entire Asset Disposition) or until the cumulative Net Cash Proceeds from all Asset Dispositions by the Borrower in any particular fiscal year exceed $100,000 (in which case a prepayment shall be made in the amount of the Net Proceeds from the specific Asset Disposition (or portion thereof) causing the limit to be received exceeded), except that the terms of this Section shall not be applicable with respect to Asset Dispositions by the Borrower or any Restricted Subsidiary if the Net Proceeds therefrom are reinvested in fixed assets (for use in its business or, with respect thereofto the Borrower, the business of the Subsidiaries) and, within five (5) Business Days after the receipt 180 days of such Asset Disposition, provided that any -------- such Net Proceeds not so reinvested shall be used to prepay the Advances on the 181st day; provided, however, that with respect to the Net Proceeds -------- ------- from the Orpington Sale/Leaseback, the Borrower shall have twenty-four (24) months from the closing of the Orpington Sale/Leaseback to reinvest such Net Proceeds in fixed assets (for use in its business), provided, that, if -------- such Net Proceeds from the Orpington Sale/Leaseback are not so reinvested within such twenty-four (24) month period, any such Net Proceeds not so reinvested shall be used to prepay the Advances on the Business Day immediately succeeding the second anniversary of the closing of the Orpington Sale/Leaseback.
(ii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash ProceedsProceeds from any Equity Issuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, then outstanding Advances in an aggregate amount equal to one hundred percent (100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x%) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds payable concurrently with consummation of such issuance.
(iii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds from the sale or issuance by the Borrower or any of its Subsidiaries of any Debt (other than Debt permitted to be incurred under Section 7.02), the Borrower shall prepay the then outstanding Advances in excess an amount equal to one hundred percent (100%) of the applicable $2,500,000 basket described above not so reinvested. The amount such Net Cash Proceeds payable concurrently with consummation of each such sale or issuance.
(iv) Each prepayment made pursuant to clause (i), (ii), or (iii) shall be applied to prepay the relevant Facilities in the following manner: first, ----- to prepay Term A Advances then outstanding until the Term Loans and Revolving Loans A Facility is repaid in full (with a permanent reduction such prepayments to be applied to the installments of the relevant Term A Advances in the inverse order of the maturity thereof); second, to ------ prepay Revolving Advances then outstanding until such Revolving Advances are paid in full; third to prepay Alternative Currency Revolving Advances ----- then outstanding until such Alternative Currency Revolving Advances are paid in full; fourth to prepay Letter of Credit Commitments) Advances then outstanding ------ until such Advances are paid in accordance with this Section 1.9 full and fifth, to prepay Alternative ----- Currency Letter of Credit Advances then outstanding until such Advances are paid in full.
(iiv) If after The Borrower shall, within fifteen (15) days following the Closing Date the Borrower or any Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Moneyend of each month in each Fiscal Year, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 pay to the Administrative Agent for deposit in the L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such Account to equal the (i) amount by which the aggregate Available Amount of all Letters of Credit then outstanding exceeds the estimated Net Cash Proceeds Letter of Credit Facility on such issuance or incurrence. Within five Business Day plus ---- (5ii) the Dollar Equivalent amount by which the aggregate Available Amount of all Alternative Currency Letters of Credit then outstanding exceeds the Alternative Currency Letter of Credit Facility on such Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan DocumentsDay.
(iiivi) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00The foregoing notwithstanding, the Borrower shall promptly notify the Administrative Agent provisions of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii2.06(b) shall not require be construed to permit any prepayment Equity Issuance, Debt issuance or Asset Disposition otherwise prohibited under the terms of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAgreement.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans."
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of Holdings, 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 any Restricted such Subsidiary in respect thereof) and, within and (y) no later than five (5) Business Days after following receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100100.0% of the amount of all such Net Cash ProceedsProceeds in excess of $5,000,000 for the applicable fiscal year; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause or, in each case, if so committed to be invested or reinvested within such 365 day period, invested or reinvested within 180 days after such initial 365 day period, the Net Cash Proceeds thereof in assets used or useful in the business of the Borrower and its Subsidiaries (x) aboveother than current assets), then so long as no Event of Default has occurred and is continuingthen exists, if the Borrower (Ashall not be required to make a mandatory prepayment under this Section 2.8(b)(i) actually reinvests in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has contractually committed to reinvest be invested or reinvested (and actually reinvested within such Net Cash Proceeds in assets that perform the same or similar function extension period) as described in the business of the Borrower Borrower’s notice within such 365-day period (or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofextension period). Promptly after the end of such 12365-month day period (or 18-month such extension period, as applicable), the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $5,000,000 for the applicable $2,500,000 basket described above fiscal year not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue incur or incur assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))7.1, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereof, 100% by the Borrower or such Subsidiary of Net Cash Proceeds of such incurrence or assumption the Borrower shall prepay the Obligations in an amount equal to such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and until paid in full (such prepayments being applied ratably to the relevant remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full. ), then to Swing Loans and then to Cash Collateralize Letters of 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 7.1 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period Within fifteen (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which 15) days after annual financial statements are available on or prior required to have been delivered pursuant to Section 6.1(b), beginning with the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00fiscal year ending December 31, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2025, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in Obligations by an aggregate amount equal to 100(1) 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the sum of:
(A) all voluntary prepayments of Term Loans and any Incremental Term Loans; and
(B) all voluntary prepayments of Revolving Loans to the extent the applicable Revolving Credit Commitments are permanently reduced by the amount of all such Net payments; in each case of clauses (ii)(A) and (iii)(B) above, during such calendar year (and not applied to the Excess Cash Proceeds; provided, that Flow prepayment under this subsection clause (iii) shall not require any prepayment of Term Loans for the prior year) or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodcalendar year and prior to the prepayment date in this clause (iii), the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, and to the extent such prepayments are funded with Internally Generated Funds; provided that (A) if the Consolidated Total Net Cash Proceeds have not been so reinvested, Leverage Ratio as of the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount end of such fiscal year is less than 3.25:1.00 but equal to or greater than 2.75:1.00, then such percentage shall be reduced to 25.0% and (B) if the Consolidated Total Net Cash Proceeds received from Leverage Ratio as of the applicable Prepayment Sale/Leaseback Transactionend of such fiscal year is less than 2.75:1.00, then such percentage shall be reduced to 0.0%. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), and then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(iv) At The Borrower shall, on each date the end Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 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 under this Section 2.8(b) shall be applied first ratably to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Term SOFR Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Term Loans or Term SOFR Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 9.1. Each Cash Collateralization of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If for any reason the Total Revolving Credit Outstandings exceed the Aggregate Commitments at such time, the Borrowers shall immediately prepay 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.
(A) Upon closing of the sale of the West Colton Terminal, the Borrowers shall cause the Minimum West Colton Sale Lender Payment immediately wired directly from the purchaser of such assets to the Administrative Agent to prepay the Loans in an aggregate amount equal to [***]% of the Minimum West Colton Sale Lender Payment, and (B) upon closing of the sale of the ▇▇▇▇▇▇ Terminal, the Borrowers shall cause the Minimum ▇▇▇▇▇▇ Sale Lender Payment immediately wired directly from the purchaser of such assets to the Administrative Agent to prepay the Loans in an aggregate amount equal to [***]% of the Minimum ▇▇▇▇▇▇ Sale Lender Payment.
(ii) Unless otherwise agreed in writing by the Administrative Agent, and Required Lenders, (A) if any Borrower or any Restricted Subsidiary shall shall, at any time time, Dispose of any Property otherwise permitted by Section 7.05 of the Credit Agreement, the Borrowers shall havecause such funds to be immediately wired directly from the Purchaser of such assets (or from time the Hedge Bank in the event of an unwinding of any Swap Contract) to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the Borrower shall promptly notify the Administrative Agent of such Disposition immediately upon receipt by any Borrower or Event of Loss (including the amount Restricted Subsidiary of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary thereof (but in respect thereof) and, within five (5) Business Days after the no event later than 1 day following receipt of such Net Cash Proceeds, ) to prepay the Borrower shall prepay first, the relevant Term Loans, Loans and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, L/C Borrowings in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any from such Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or other amount as the Administrative Agent and Required Lenders may decide., and (B) states all amounts in a notice delivered within 12 months any sale escrow accounts (including any amounts being held in escrow for the sale of the receipt of Casper Terminal, such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business escrow amounts remain as collateral of the Borrower or a Restricted SubsidiaryLenders), shall be wired immediately upon release to the 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 and shall prepay the Borrower or a Restricted Subsidiary has reinvested Loans in an amount equal to 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullescrow amount.
(iiiii) If after any Loan Party has any Excess Cash on the Closing Date the Borrower or any Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Moneylast Business Day of each month (each such date, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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)“Measurement Date”), such Loan Party shall prepay the Borrower shall promptly notify the Administrative Agent of the estimated Net Loans in an amount equal to such Excess Cash Proceeds of on such issuance or incurrence. Within Measurement Date, by not later than five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan DocumentsMeasurement Date.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Amendment No. 5 to Amended and Restated Credit Agreement (USD Partners LP)
Mandatory. (i) If the Borrower receives any Net Proceeds from Asset Sales or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which Recovery Event, such amounts shall be subject used in accordance with Section 7.08 to subsection (iii) below) or shall suffer an Event of Loss, then prepay the 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 respect thereof) and, Loan within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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; provided that an aggregate amount 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 be applied to the repayment of the Loan; provided, in assets further, that perform any Net Proceeds received from (x) a Weekly Reader Sale shall not be required to be used to prepay the same or similar function for Loan and may be reinvested by the Borrower or a Restricted Subsidiary, to any Guarantor in Reinvestment Assets within 180 days of the extent date of such Weekly Reader Sale so long as any such Net Cash Proceeds that are actually not so reinvested in within such assets time period shall be used to prepay the Loan on or before the 181st day after such Weekly Reader Sale or (By) states in a notice delivered within 12 months of any Recovery Event shall not be required to be used to prepay the receipt of such Net Cash Proceeds, that Loan and may be reinvested by the Borrower or a Restricted Subsidiary has committed to reinvest any Guarantor in Reinvestment Assets within 90 days of the date of such Recovery Event so long as any such Net Cash Proceeds in assets that perform are not so reinvested within such time period shall be used to prepay the same Loan on or similar function in before the business 91st day after such Recovery Event. Any such payment shall be accompanied by payment of the Borrower or a Restricted Subsidiary, applicable Yield Maintenance Amount required pursuant to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofSection 2.08. Promptly after the end of such 12-month or 18-month period, as applicable, the (ii) The Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has reinvested such Net Cash Proceeds in such assets, and, writing of any mandatory prepayment of Loans required to be made pursuant to this Section 2.04(b) at least three (3) Business Days prior to the extent date of such Net Cash Proceeds have not been so reinvested, prepayment. Each such notice shall specify the Borrower shall promptly prepay first, the relevant Term Loans, date of such prepayment and second, the relevant Revolving Loans, together with provide a commensurate permanent reduction reasonably detailed calculation of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds in excess prepayment. The Administrative Agent will promptly notify each Lender of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction contents of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (including Indebtedness issued or incurred under Sections 1.16, 1.18 Borrower’s prepayment notice 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 such Lender’s Pro Rata Share of the estimated Net Cash Proceeds of such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documentsprepayment.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Term Loan Credit and Guarantee Agreement (RDA Holding Co.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the The Borrower shall prepay first, the relevant Term Loans, and second, Loans and/or Cash Collateralize the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, L/C Obligations as hereinafter provided in an aggregate amount equal to 100% of the amount of Net Cash Proceeds received by the Borrower or any Subsidiary from all Dispositions (other than Permitted Transfers) and Recovery Events within 5 Business Days after the date on which the Borrower or such Subsidiary receives such Net Cash Proceeds; provided provided, however, that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 prepayment shall not be required to the receipt thereof, in assets that perform the same or similar function for extent the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets Subsidiary reinvests all or (B) states in a notice delivered within 12 months any portion of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function useful in the Borrower’s or such Subsidiary’s business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days 180 days after the receipt of such Net Cash Proceeds, (B) such prepayment shall be required only to the extent the aggregate Net Cash Proceeds received by the Borrower and its Subsidiaries in any fiscal year of the Borrower and not reinvested in the manner set forth in the foregoing clause (A) exceed $5,000,000 and (C) in the case of any such Net Cash Proceeds received by any Subsidiary that is not a Wholly Owned Subsidiary, only the Borrower’s pro rata share (based on the ownership of Equity Interests of such Subsidiary that are owned by the Borrower and its Wholly Owned Subsidiaries) of the Net Cash Proceeds received by such Subsidiary shall be subject to this Section 2.05(b)(i).
(ii) Each prepayment of Loans pursuant to Section 2.05(b)(i) shall be applied, first, to the principal repayment installments of the Term Loan on a pro-rata basis for all such principal repayment installments, including, without limitation, the final principal repayment installment on the Maturity Date and, second, to the Revolving Facility in the manner set forth in clause (iv) of this Section 2.05(b). Subject to Section 2.15, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facility.
(iii) If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall immediately prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, Swingline Loans and L/C Borrowings (together with a commensurate permanent reduction of all accrued but unpaid interest thereon) and/or Cash Collateralize the relevant Revolving Credit Commitments, L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceedsexcess; provided, however, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify not be required to Cash Collateralize the Administrative Agent whether L/C Obligations pursuant to this Section 2.05(b) unless, after the Borrower or a Restricted Subsidiary has so reinvested prepayment of the Revolving Loans and Swingline Loans, the Total Revolving Outstandings exceed the Revolving Facility at such Net Cash Proceeds in such assetstime.
(iv) Prepayments of the Revolving Facility made pursuant to this Section 2.05(b), andfirst, shall be applied ratably to the extent such Net Cash Proceeds have not been so reinvestedL/C Borrowings and the Swingline Loans, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment second, shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving 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 (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the Lenders, as applicable. Within the parameters of the applications set forth above, prepayments pursuant to this Section 2.05(b) shall be applied first to Base Rate Loans and then to Term SOFR Loans in direct order of Interest Period maturities. All prepayments under this Section 2.05(b) shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of prepayment.
Appears in 1 contract
Mandatory. (i) If the Borrower any Credit Party or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $250,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then the (x) Borrower Representative 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 such Credit Party or any Restricted such Subsidiary in respect thereof) and, and (y) promptly (and in any event within five (5) Business Days after Days) upon receipt by any Credit Party or the receipt Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested in such assets or (By) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest be invested or reinvested, in each case as described in Borrower Representative’s notice with such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the Borrower such Credit Party or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsBorrower Representative’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the relevant outstanding Term Loans and Revolving Loans until paid in full (with applied on a permanent pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction of the relevant in Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Second Restatement Closing Date the Borrower any Credit Party or any Restricted 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 Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness for Borrowed Money, (other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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)6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of such Credit Party or such Subsidiary in respect thereof. Within Promptly (and in any event within five (5) Business Days after Days) upon receipt thereofby such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to any outstanding Overadvances, then to the Borrower to prepay the relevant outstanding Term Loans and until paid in full (applied on a pro rata basis over the relevant Revolving Loans remaining principal amortization payments thereof), and, then to (with in the order determined by Agent but without a permanent reduction of the relevant in Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullthe Revolving Loans, Swing Loans and Reimbursement Obligations. The Borrower Each Credit Party acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other No later than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the earlier of (a) receipt by Agent of such Net Cash Proceedsthe 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 Borrower fiscal year ending June 30, 2017, Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then-outstanding Loans by an aggregate amount equal to 10050% of Excess Cash Flow of Credit Parties and their Subsidiaries for the amount most recently completed fiscal year of all such Net Cash ProceedsCredit Parties; provided, however, that this subsection if the Senior Leverage Ratio (iiidetermined 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 require any be required to make a prepayment of Term Loans or Revolving Loans with the Net Excess Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests Flow for such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionfiscal year. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans 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 (with in the order determined by Agent but without a permanent reduction of the relevant in Revolving Credit Commitments) any Overadvances, Swing Loans, Reimbursement Obligations, without any reduction in accordance with 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 1.9 until 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 fullany 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) At Borrowers shall, (A) on each date the end of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if HoldingsOveradvances, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000Revolving Loans, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the amount of the aggregate Revolving Credit Exposures of all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Revolving Credit Commitments have been so reduced and second(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, to prepay outstanding the Revolving Loans, Swing 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 amount equal to such excess.
(v) Borrowers shall pay to the Agent when and as received by Borrowers and as a mandatory prepayment of the Obligations, a sum equal to the Cure Amount determined in accordance with Credit Parties’ exercise of Cure Rights pursuant to and in accordance with Section 7.7 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 full, thereafter against the other Obligations, in such order as the Agent determines.
(vi) Unless Borrower Representative otherwise directs, prepayments of Loans under this Section 2.8(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 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 7.4.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary of its Wholly-owned Subsidiaries shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 5,000,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvestedthen exists. The amount of each such prepayment shall be applied first to the relevant outstanding Term Swing Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 shall incur any additional Subordinated Debt or the Borrower or any Restricted Wholly-owned Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (including Indebtedness equity securities issued in connection with the exercise of employee 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))director stock options, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or issuance to be received by or incurrencefor the account of the Borrower or such Wholly-owned Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Wholly-owned Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall apply 100% of the amount of such Net Cash Proceeds shall be applied by first to the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction prepayment of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 outstanding Swing Loans, until paid in full, second to the prepayment of the Revolving Loans, until paid in full, and then to the prefunding of all L/C Obligations. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 8.11 (Maintenance of Subsidiaries) or Section 9.1(j) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If The Borrower shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time Revolving Credit Commitments are reduced pursuant to time enter into a SaleSection 1.12 hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, prefund the L/Leaseback Transaction with respect C Obligations by the amount, if any, necessary to a Principal Owned Property or sell reduce the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application sum of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) andRevolving Loans, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Swing Loans, and second, L/C Obligations then outstanding to the relevant Revolving Loans, together with a commensurate permanent reduction of amount to which the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, to the extent such Net Cash Proceeds Commitments have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullreduced.
(iv) At If at any time the end of any Business Day from and after the Second Amendment Effective Date until the end sum of the Basket Suspension Periodunpaid principal balance of the Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondthe L/C Obligations then outstanding shall be in excess of the Borrowing Base as then 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 prepay outstanding 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 and Swing Loans 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 Credit.
(v) Prepayments of Loans under this Section 1.8(b) shall be applied first to Swing Loans, until payment in full thereof, second to all other Borrowings of Base Rate Loans until payment in full thereof, and third 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 Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the aggregate outstanding amount of the Advances plus the Letter of Credit Exposure ever exceeds the lesser of (i) the Borrowing Base and (ii) the aggregate Commitments, the Borrower or shall after receipt of written notice from the Administrative Agent regarding such deficiency, take any Restricted Subsidiary of the following actions (and the failure of the Borrower to take such actions to remedy such Borrowing Base deficiency shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer constitute an Event of LossDefault):
(A) prepay the Advances or, then if the Advances have been repaid in full, make deposits into the Cash Collateral Account to provide cash collateral for the Letter of Credit Exposure, such that the Borrowing Base deficiency is cured within 10 days after the date such deficiency notice is received by the Borrower shall promptly from the Administrative Agent;
(B) (1) notify the Administrative Agent of within 10 days after the date such Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be deficiency notice is received by the Borrower or any Restricted Subsidiary of its intention to pledge as Collateral for the Obligations additional Oil and Gas Properties acceptable to the Administrative Agent and the Required Lenders, and (2) take such action as is necessary to cause such additional Collateral to be pledged within 20 days of the giving of such notice by the Borrower to the Administrative;
(C) (1) deliver within 10 days after the date such deficiency notice is received by the Borrower from the Administrative Agent, written notice to the Administrative Agent indicating the Borrower’s election to repay the Advances and make deposits into the Cash Collateral Account to provide cash collateral for the Letters of Credit, each in respect thereofsix monthly installments equal to one-sixth of such Borrowing Base deficiency with the first such installment due 30 days after the date such deficiency notice is received by the Borrower from the Administrative Agent and each following installment due 30 days after the preceding installment and (2) andto make such payments and deposits within such time period; or
(D) (1) deliver, within five (5) Business Days 10 days after the receipt of date such Net Cash Proceeds, deficiency notice is received by the Borrower shall prepay firstto the Administrative Agent, written notice to the relevant Term Loans, and second, Administrative Agent indicating the relevant Revolving Loans, together with a commensurate permanent reduction of Borrower’s election to combine the relevant Revolving Credit Commitments, options provided in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xB) and clause (C) above, so long and also indicating the amount to be prepaid in installments and the amount to be provided as no Event of Default has occurred additional Collateral, and is continuing, if (2) make such six equal consecutive monthly installments and deliver such additional Collateral within 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 are actually reinvested in such assets or time required under clause (B) states in a notice delivered within 12 months of and clause (C) above.
(ii) Each prepayment pursuant to this Section 2.05(b) shall be accompanied by accrued interest on the receipt amount prepaid to the date of such Net Cash Proceedsprepayment and amounts, that the Borrower or if any, required to be paid pursuant to Section 2.12 as a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end result 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 prepayment being made on 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvesteddate. The amount of each such Each prepayment under this Section 2.05(b) shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 Advances as determined by Section 8.7 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied and agreed to by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) Lenders 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 or any other terms of the Loan Documentstheir sole discretion.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any Restricted Subsidiary of its Subject Subsidiaries in respect of its property or assets, after the first $50,000,000 of Net Cash Proceeds relating to any Extraordinary Receipt (it being understood and agreed that the Specified Net Cash Proceeds shall at not be taken into account for purposes of calculating such first $50,000,000) and thereafter any time amount in excess of $5,000,000 for any one event or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event series of Lossrelated events, then the Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the prepay an aggregate principal amount of the estimated Loans equal to 100% of all Net Cash Proceeds to be received therefrom within three Business Days after the date of receipt thereof by the Borrower or any Restricted such Subsidiary subject to the provisions of Section 2.05(b)(iv); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the assets or property in respect thereofof which the Extraordinary Receipt was received, it shall deliver written notice of such intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which Borrower receives such Net Cash Proceeds, (B) andif the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested so long as within five (5) Business Days 12 months after the receipt of such Net Cash ProceedsProceeds such reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or unreasonably delayed, and is substantially completed within 24 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 24 months after such date of receipt, the Borrower shall prepay first, have up to an additional 12 months to complete such project so long as it certifies in a written notice to the relevant Term Loans, Administrative Agent delivered prior to the expiration of such 24‑month period that it reasonably expects completion to occur within such additional 12‑month period and second, attaching a budget and schedule for the relevant Revolving Loans, together with a commensurate permanent reduction remaining portion of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% construction that evidences the same) and (C) within 10 days of the amount date the Borrower consummates such restoration, repair or replacement or purchase, it shall deliver a certificate of all a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash ProceedsProceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(i); provided further that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account not so reinvested at the end of Dispositions during any Fiscal Year such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05. The Borrower not exceeding confirms that it received $2,500,000 44,000,000 of Net Cash Proceeds from Extraordinary Receipts through September 2013 (the “Specified Net Cash Proceeds”) and delivered a notice dated September 11, 2013 to the Administrative Agent relating thereto under the Existing Credit Agreement. Unless the Borrower reinvests such Net Cash Proceeds in accordance with clause (B) of the preceding sentence, such Net Cash Proceeds shall be applied to the prepayment of the Loans in accordance with this Section 2.05(b)(i).
(ii) Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied, first, ratably to the Term A Facility, the Term B Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof on a pro rata basis and, thereafter, to the Revolving Credit Facility in the aggregate or received on account manner set forth in clause (iii) of Events of Loss during any Fiscal Year this Section 2.05(b).
(iii) Prepayments of the Borrower not exceeding $2,500,000 Revolving Credit Facility made pursuant to clause (i) of this Section 2.05(b), first, shall be applied to prepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in the aggregate and (y) other than during the Basket Suspension Periodfull, second, shall be applied to prepay Swing Line Loans outstanding at such time until all such Swing Line Loans are paid in full, and, third, shall be applied to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full; and, in the case of any Disposition or Event prepayments of Loss not covered by the Revolving Credit Facility required pursuant to clause (xi) aboveof this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Loans and L/C Borrowings outstanding at such time, may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit, which has been Cash Collateralized, such funds shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(iv) Notwithstanding the provisions of Section 2.05(b)(i), if any mandatory prepayments under Section 2.05(b)(i) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, if the Borrower may defer the making of such mandatory prepayment until the earlier of (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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to such Interest Period and (B) the date thirty days after the date on which such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds mandatory prepayment would otherwise have been required to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullmade.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
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) If In the Borrower or event of any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 Debt Issuance by the Borrower or any of its Restricted Subsidiary in respect thereof) Subsidiaries on or after the Closing Date, then concurrently with receipt of Net Cash Proceeds of such Debt Issuance, the Borrower shall prepay an aggregate principal amount of the Term Loans and, within five (5) Business Days after if so provided in the receipt Incremental Term Supplement applicable thereto, Incremental Term Loans equal to 100% of such Net 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 firstan aggregate principal amount of Term Loans and, if so provided in the relevant Incremental Term Supplement applicable thereto, Incremental Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Periodsuch Restricted Subsidiary; provided, in the case of any Disposition or Event of Loss not covered by clause (x) abovehowever, that, for so long as no Event of Default has shall have occurred and is be 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed 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 reinvest 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 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 be continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Proceeds (other than Net Cash Proceeds in connection with the Disposition of a Refinery) in assets that perform the same or similar function used in the business of the Borrower or its Subsidiaries, and in the case of any Excess Disposition Net Cash Proceeds that have not been reinvested within one year from the receipt thereof by the Borrower or such Subsidiary, the Borrower shall immediately upon the expiration of such one-year period, make an offer to the Lenders to prepay 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).
(iv) Upon a Disposition of (A) the El Paso Refinery as permitted under Section 7.05(c)(i), the Borrower shall prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in full, and (B) the Gallup Refinery as permitted under Section 7.05(c)(ii), 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 Net Cash Proceeds (which amount shall be in compliance with clause (B) of Section 7.05(c)(ii)) received by the Borrower or such Restricted 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 extent terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such transaction or event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds are actually reinvested 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 assets within 18 months following time); provided, further, that (A) the receipt thereof. Promptly after the end portion 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, allocated to the extent such Net Cash Proceeds have Other Applicable Indebtedness shall not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in exceed 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 required to be applied allocated to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of Other Applicable Indebtedness pursuant to the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt terms thereof, 100% and the remaining amount, if any, of such Net Cash Proceeds shall be applied by allocated to the Borrower to prepay the relevant Term Loans and and, if so provided in the relevant Revolving Incremental Term Loan Supplement applicable thereto, Incremental Term Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 terms hereof to the prepayment of the Lenders for any breach of Section 8.7 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property HoldcoTerm Loans and, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00if applicable, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Incremental Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprepayment of the Term Loans and, if applicable, the Incremental Term Loans, that would have otherwise been required pursuant to this subsection (iiiSection 2.03(b) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such Net Cash Proceeds have not been so reinvestedindebtedness repurchased or prepaid, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the declined amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two ten (210) Business DaysDays after the date of such rejection) apply such amounts in excess of $100,000,000 first, be applied to prepay outstanding Swing Loansthe Term Loans and, and secondif so provided in the Incremental Term Loan Supplement applicable thereto, to prepay outstanding Revolving LoansIncremental Term Loans in accordance with the terms hereof.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time (i) make or agree to make a Disposition Disposition, including without limitation any Targeted Transactions or Designated Transaction, or (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iiiii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or each Event of Loss not covered by clause (x) aboveLoss, 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 90 days of 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 has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice with such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above 1,000,000 not so invested or reinvested. The Except for any prepayment resulting from any Designated Transaction, the amount of each such prepayment shall be applied first to the relevant outstanding Term Bullet Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 A until paid in full, then to outstanding Term Loans A until paid in full, then to outstanding Term Loans B until paid in full and then to the Revolving Loans until paid in full and then to the Swing Loans, provided that (A) the Net Cash Proceeds of any disposition of the inventory and accounts receivable of a Targeted Transaction agreed to by the Borrower and the Administrative Agent (the “Working Capital Proceeds”) in an amount equal to the amount included in the Borrowing Base (but not to exceed $487,000 in the aggregate) with respect to such assets shall first be applied to the repayment of Revolving Loan until paid in full and then to the Swing Loans, and (B) the Borrower may elect to apply any Working Capital Proceeds in excess the amount described in the foregoing clause (A) to the repayment of Revolving Loans or the Bullet Loans A. The amount of any payment resulting from any Designated Transaction shall be applied first to the outstanding Term Loans A until paid in full, then to outstanding Term Loans B until paid in full and then to the Revolving Loans until paid in full and then to the Swing Loans until paid in full and then to the outstanding Bullet Loans A, provided that the Net Cash Proceeds of any disposition of the inventory and accounts receivable in connection with a Designated Transaction in an amount equal to the amount included in the Borrowing Base with respect to such assets shall first be applied to the repayment of Revolving Loan until paid in full and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Event of Loss shall be deposited with the Administrative Agent and held by it in 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 Restricted Subsidiary shall issue any new equity securities (other than equity securities issued in connection with the exercise of employee stock options, equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 Sections 6.11(a), (including Indebtedness issued b) 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))c) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full. , then to the Term Loans B until paid in full, then to the Revolving Loans until paid in full) then to the Swing Loans until paid in full and then to the Bullet Loans A. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other No later than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of 28 days after the last day of each fiscal quarter, commencing with the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00ending January 31, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2013, the Borrower shall prepay first, the relevant then-outstanding Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in Loans A by an aggregate amount equal to 100% the amount by which the Borrower’s Excess Cash Flow for the period commencing October 1, 2012 and ending on the last day of such fiscal quarter exceeded the amount necessary for the Borrower’s Fixed Charge Coverage Ratio to be 1.2 to 1, minus the amount of all such Net Cash Proceeds; providedpayments previously made pursuant to this Section 2.8(b)(iii).
(iv) The Borrower shall, that on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and 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) Each prepayment of Loans under this subsection (iiiSection 2.8(b) shall not require be made by the payment of the principal amount to be prepaid and, in the case of any prepayment of Term Loans A, Term Loans B, Bullet Loans A or Swing Loans, accrued interest thereon to the date of prepayment. Each prefunding of L/C Obligations shall be made in accordance with Section 7.4.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans with and the Net Cash Proceeds of a Prepayment SaleL/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months C Obligations then outstanding shall be in excess of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodBorrowing Base as then determined and computed, the Borrower shall notify immediately and without notice or demand pay over the amount of the excess to the Administrative Agent whether 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 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 Credit.
(vii) If the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, to the extent such Net Cash Proceeds have not been so reinvestedreceives any Tax Refunds, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in Obligations by an amount equal to the amount of such Net Cash Proceeds received from proceeds, and, if the applicable Prepayment Sale/Leaseback TransactionAdministrative Agent receives any Tax Refunds, the Administrative Agent shall apply such Tax Refunds to effect such prepayment. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and A until paid in full, then to the outstanding Term Loans B until paid in full, then to the Revolving Loans (with a permanent reduction of until paid in full and then to the relevant Revolving Credit Commitments) Swing Loans until paid in accordance with this Section 1.9 full and then to the outstanding Bullet Loans A until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted Subsidiary such Guarantor in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Guarantor of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 500,000 in the aggregate so long as no Default or received on account Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests states in its notice of such event that the Borrower or the relevant Guarantor intends to reinvest, within 120 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof120-day period. Promptly after the end of such 12120-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary such Guarantor 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 applied, first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 Restricted Subsidiary Guarantor shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money (A) equity securities issued in connection with the exercise of employee stock options or pursuant to an employee stock incentive plan, (B) capital stock of the Parent the Net Cash Proceeds of which are used in whole or in part to finance a Permitted Acquisition, (C) capital stock issued to the seller of an Acquired Business in connection with a Permitted Acquisition, (D) capital stock of the Parent the Net Cash Proceeds of which are used to finance redemptions of equity interests owned by managers of the Borrower or a Guarantor upon termination of employment to the extent permitted by Section 8.7 8.12(c) hereof, (including Indebtedness E) capital stock of the Parent the Net Cash Proceeds of which are used to finance Capital Expenditures and (F) equity securities issued or incurred under Sections 1.16, 1.18 and 1.19 (but excluding Section 1.20 or any Indebtedness incurred as in connection with the exercise of a Permitted Refinancing of all or a portion of existing Term Loans of any Class))Cure Right, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100the Borrower shall prepay the Obligations in an aggregate amount equal to 50% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied 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 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date the Borrower or any Guarantor 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 Guarantor in respect thereof. Promptly upon receipt by the Borrower to or such Guarantor of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant 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 and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull 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.
(iiiiv) If after the Closing Date the Borrower or any Restricted Subsidiary Guarantor shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted Subsidiary such Guarantor in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Guarantor of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied applied, first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull 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.
(ivv) At Within one hundred twenty (120) days after the end of any Business Day from and after the Second Amendment Effective Date until the end each fiscal year of the Basket Suspension PeriodParent (commencing with the Parent’s fiscal year ended December 31, if Holdings2008), the Borrower shall prepay the Obligations by an amount equal to the Excess Cash Flow Prepayment Percentage of Excess Cash Flow of Borrower and their Restricted its Subsidiaries hold Unrestricted cash 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 until paid in full and Cash Equivalents in excess then to the Revolving Credit.
(vi) 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 $100,000,000the aggregate principal amount of Revolving Loans, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondL/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(vii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.9(b) shall be applied first to prepay outstanding Revolving 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 9.4 hereof.
Appears in 1 contract
Sources: Credit Agreement (Lecg Corp)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of Holdings, 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 any Restricted such Subsidiary in respect thereof) and, within and (y) no later than five (5) Business Days after following receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100100.0% of the amount of all such Net Cash ProceedsProceeds in excess of $5,000,000 for the applicable fiscal year; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause or, in each case, if so committed to be invested or reinvested within such 365 day period, invested or reinvested within 180 days after such initial 365 day period, the Net Cash Proceeds thereof in assets used or useful in the business of the Borrower and its Subsidiaries (x) aboveother than current assets), then so long as no Event of Default has occurred and is continuingthen exists, if the Borrower (Ashall not be required to make a mandatory prepayment under this Section 2.8(b)(i) actually reinvests in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has contractually committed to reinvest be invested or reinvested (and actually reinvested within such Net Cash Proceeds in assets that perform the same or similar function extension period) as described in the business of the Borrower Borrower’s notice within such 365-day period (or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofextension period). Promptly after the end of such 12365-month day period (or 18-month such extension period, as applicable), the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $5,000,000 for the applicable $2,500,000 basket described above fiscal year not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue incur or incur assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))7.1, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereof, 100% by the Borrower or such Subsidiary of Net Cash Proceeds of such incurrence or assumption the Borrower shall prepay the Obligations in an amount equal to such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and until paid in full (such prepayments being applied ratably to the relevant remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full. ), then to Swing Loans and then to Cash Collateralize Letters of 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 7.1 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period Within fifteen (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which 15) days after annual financial statements are available on or prior required to have been delivered pursuant to Section 6.1(b), beginning with the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00fiscal year ending December 31, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2022, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in Obligations by an aggregate amount equal to 100(1) 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the sum of:
(A) all voluntary prepayments of Term Loans and any Incremental Term Loans; and
(B) all voluntary prepayments of Revolving Loans to the extent the applicable Revolving Credit Commitments are permanently reduced by the amount of all such Net payments; in each case of clauses (ii)(A) and (iii)(B) above, during such calendar year (and not applied to the Excess Cash Proceeds; provided, that Flow prepayment under this subsection clause (iii) shall not require any prepayment of Term Loans for the prior year) or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodcalendar year and prior to the prepayment date in this clause (iii), the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, and to the extent such prepayments are funded with Internally Generated Funds; provided that (A) if the Consolidated Total Net Cash Proceeds have not been so reinvested, Leverage Ratio as of the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount end of such fiscal year is less than 3.00:1.00 but equal to or greater than 2.50:1.00, then such percentage shall be reduced to 25.0% and (B) if the Consolidated Total Net Cash Proceeds received from Leverage Ratio as of the applicable Prepayment Sale/Leaseback Transactionend of such fiscal year is less than 2.50:1.00, then such percentage shall be reduced to 0.0%. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), and then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(iv) At The Borrower shall, on each date the end Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 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 under this Section 2.8(b) shall be applied first ratably to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Tranche Rate Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Term Loans or Tranche Rate Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 9.1. Each Cash Collateralization of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If Within ninety (90) days after the end of each Fiscal Year commencing with the Fiscal Year ending December 31, 2008, the Borrower or any Restricted Subsidiary shall at any time or from time prepay an aggregate principal amount of Senior Debt equal to time make a Disposition (other than a Sale/Leaseback Transaction 50% of Excess Cash Flow for such Fiscal Year; provided, however with respect to a Principal Owned Property which Fiscal Year 2008, Excess Cash Flow shall be subject computed for the period commencing with the Commitment Effective Date through the last day of such Fiscal Year; and further provided, however, if the Total Leverage Ratio as of the last day of such Fiscal Year is less than 2.0 to subsection (iii) below) or shall suffer an Event of Loss1.0, then the Borrower shall promptly notify not be required to make a prepayment pursuant to this Section 2.05(b)(i) for such Fiscal Year.
(ii) If any Loan Party or any of its Subsidiaries disposes of any property in connection with an Asset Disposition which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to 100% of such Net Cash Proceeds 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 to 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 Disposition Asset Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or Event such Subsidiary may reinvest all or any portion of Loss (including the amount of the estimated such Net Cash Proceeds to be received by in operating assets performing the Borrower same or any Restricted a similar function or otherwise used in the business of such Loan Party or such Subsidiary in respect thereof) and, so long as within five (5) Business Days 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 as set forth in this Section 2.05(b)(ii) immediately upon the earlier of the occurrence of a Default or the expiration of such 180 day period.
(iii) Upon the 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 Permitted Acquisition) or the exercise by any Person of any convertible Capital Securities issued by a Loan Party (other than the Warrants), the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate principal amount of Senior Debt equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (xsuch prepayments to be applied as set forth in clauses (vii) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (yix) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullbelow).
(iiiv) If after Upon the Closing Date the Borrower incurrence or issuance by any Loan Party or any Restricted Subsidiary shall issue or incur of its Subsidiaries of any Indebtedness for Borrowed Money, Debt (other than Indebtedness for Borrowed Money Debt permitted by Section 8.7 (including Indebtedness issued or incurred under Sections 1.16, 1.18 7.01 (a) — (i) 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 Classk)), the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of the estimated 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 such issuance or incurrence. Within five Net Cash Proceeds from the exercise of any Warrants, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to (5A) Business Days after receipt thereof, 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 greater than 2.50:1.0, (B) 75% 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 2.50:1.0 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 of its Subsidiaries, and not otherwise included in clauses (ii), (iii), (iv) or (v) of this Section 2.05(b), 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); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available Administrative Agent on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of receipt of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be received by the Borrower continuing, such Loan Party or any Restricted such Subsidiary in respect thereof) and, may apply within five (5) Business Days 180 days after the receipt of such Net Cash Proceedscash 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 the extent accepted by the Private Placement Noteholders, prepay the applicable Private Placement Notes so long as at least a Ratable Portion of the 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 amount and applied, first, to the relevant 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 second, L/C Borrowings and/or Cash Collateralize the relevant Revolving Loans, together with a commensurate permanent reduction of L/C Obligations (other than the relevant Revolving Credit Commitments, L/C Borrowings) in an aggregate amount equal to 100% 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 the case of prepayments of the 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 Net time and the Cash Proceeds; providedCollateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, that this subsection (iiicash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if may be retained by the Borrower actually reinvests such Net 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 Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodCollateralized, the Borrower funds held as Cash Collateral shall notify the Administrative Agent whether be applied (without any further action by or notice to or from the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assetsany other Loan Party) to reimburse the L/C Issuer or the Lenders, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullas applicable.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower Borrowers or any Restricted Subsidiary of their respective Subsidiaries shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $10,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers, then (x) the Borrower Borrowing Agent 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 such Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by such Borrowers or such Subsidiary of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to one hundred percent (100% %) of the amount of all such Net Cash ProceedsProceeds in excess of $10,000,000; provided provided, that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrowing Agent states in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets or a restoration or repair of the Property subject to such Event of Loss, then the applicable Borrower or the applicable Subsidiary shall deliver the Net Cash Proceeds to the Administrative Agent to be applied to the Revolving Loan and the Administrative Agent may, in its sole discretion, establish a reserve against available funds for borrowing purposes under the Revolving Loan for such amount, until such time as such Net Cash Proceeds have been reborrowed to effect such restoration or repair or applied to other Obligations as set forth herein. If the applicable Borrower or the applicable Subsidiary has delivered such Net Cash Proceeds to the Administrative Agent, such Borrower or Subsidiary may, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests reborrow such Net Cash Proceeds, Proceeds for investment or reinvestment so long as such Net Cash Proceeds are actually invested or reinvested as described in the Borrowing Agent’s notice within 12 months such twelve (12) month period and otherwise in accordance with the provisions of the receipt thereofapplicable Loan Documents (including, without limitation, any requirements specifically set forth in assets that perform the same or similar function for Mortgages). Promptly after the end of such twelve (12) month period, the Borrowing Agent shall notify the Administrative Agent whether such Borrower or a Restricted Subsidiarysuch Subsidiary intends to invest or reinvest such Net Cash Proceeds as described in the Borrowing Agent’s notice, and to the extent such Net Cash Proceeds are actually reinvested in such assets not to be so invested or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceedsreinvested, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, release any applicable reserve in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ii) If after full and then to the Closing Date Swing Loans. To 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 (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 extent that the Administrative Agent of the estimated directly receives any Net Cash Proceeds resulting from an Event of such issuance or incurrence. Within five (5) Business Days after receipt thereofLoss, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in apply the amount of such Net Cash Proceeds received from to the applicable Prepayment Sale/Leaseback Transaction. The Obligations as outlined in this Section 2.8(b).
(ii) On any Revaluation Date, if the aggregate principal amount of each outstanding Multicurrency Revolving Loans shall exceed an amount equal to 105% of the Multicurrency Revolving Commitments, the Borrowers shall immediately repay such prepayment shall Multicurrency Revolving Loans in an amount sufficient to reduce such aggregate principal amount as of such date of payment to an amount not to exceed 100% of the Multicurrency Revolving Commitments (such repayment to be applied to the relevant outstanding Term Loans and Revolving Loans as set forth in Section 2.9).
(with a permanent reduction of the relevant Revolving Credit Commitmentsiii) in accordance with this Section 1.9 until paid in full.[Intentionally Omitted]
(iv) At The Borrowers shall, on each date the end Domestic Revolving Credit Commitments or the Multicurrency Revolving Commitments, as applicable, are reduced pursuant to Section 2.10, prepay the Revolving Loans and 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 Domestic Revolving Credit Commitments or the Multicurrency Revolving Commitment, as applicable, have been so reduced.
(v) Unless the Borrowers otherwise direct, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans or Eurocurrency Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 7.4.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during 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 Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate or such prepayment with respect to Net Cash Proceeds received on account of Events any Disposition of or Event of Loss during any Fiscal Year with respect to assets with a value not exceeding 10% of the aggregate book value of the total consolidated assets of the Borrower not exceeding $2,500,000 in the aggregate and its Subsidiaries immediately prior to such Disposition or Event of Loss so long as no Default or Event of Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 on a ratable basis among the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitmentsseveral Lenders based on the principal amounts thereof. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in accordance with this Section 1.9 until paid in fullthe 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 Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money (1) equity securities issued in connection with the exercise of employee stock options or pursuant to the Borrower's employee stock purchase or 401(k) plans, (2) capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by Section 8.7 hereby and (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 3) other issuances of all or a portion equity securities the Net Cash Proceeds of existing Term Loans which do not exceed $5,000,000 in the aggregate during the term of any Class))this Agreement, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Revolving Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Revolving Loans 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 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) 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)-(h) 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 to or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction in an aggregate amount equal to 100% of the relevant amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullLoans 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 the Loan Documents.
(iiiiv) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 1.12 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) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell after the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease occurrence of the Principal Owned Property owned by such Principal Owned Property HoldcoBorrowing Base Condition the sum of the unpaid principal balance of the Revolving Loans, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)Swing Loans, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application L/C Obligations then outstanding shall be in excess of the Net Cash Proceeds thereof Borrowing Base as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00then determined and computed, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including immediately and without notice or demand pay over the amount of the estimated Net Cash Proceeds excess to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether for the Borrower or account of the Lenders as and for a Restricted Subsidiary has so reinvested mandatory prepayment on such Net Cash Proceeds in such assetsObligations, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of with each such prepayment shall first to be applied to the relevant outstanding Term Revolving Loans and Revolving Swing Loans 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 Credit.
(vi) 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 a permanent reduction 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 relevant Revolving Credit Commitments) principal amount to be prepaid and, in the case of Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with this Section 1.9 until paid in full9.4 hereof.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Plexus Corp)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, 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 any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Periodprovided, in the case of any Disposition or Event of Loss not covered by clause (x) aboveeach 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 has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted SubsidiaryBorrower’s notice with such 180-day period, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly and promptly after the end of such 12180-month or 18-month day 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvestedinvested 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 relevant outstanding Term Loans until paid in full and Revolving then to the Line of Credit Loans (with a permanent without any reduction in the Line of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Restricted 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 exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrenceincurrence to be received by the Borrower or such Subsidiary in respect thereof. Within Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (525%) Business Days after receipt thereof, 100% of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the relevant Revolving Line of Credit Loans (with a permanent without any reduction in the Line of the relevant Revolving Credit Commitments) 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 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If On or before the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell date that is thirty (30) days after the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which date annual financial statements are available required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00about December 31, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2013, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then-outstanding Loans by an aggregate amount equal to 100% (x) the applicable ECF Percentage for the most recently completed fiscal year of the amount Borrower, multiplied by (y) Cash Flow of all Borrower and its Subsidiaries for such Net Cash Proceeds; providedfiscal year (or, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with in the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months case of the receipt thereoffiscal year ending on or about December 31, in one or more other Principal Owned Properties. Promptly after 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionfiscal year) . The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and Revolving then to the Line of Credit Loans (with a permanent without reduction of the relevant Revolving Line of Credit CommitmentsCommitment) in accordance with this Section 1.9 until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower 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) At The Borrower shall, on each date the end Line of any Business Day from and after Credit Commitments are reduced pursuant to Section 2.10, prepay the Second Amendment Effective Date until Line of Credit Loans and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Period, if Holdings, aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess amount to which the Line of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving LoansCredit Commitments have been so reduced.
Appears in 1 contract
Sources: Credit Agreement (Granite City Food & Brewery Ltd.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted Subsidiary such Guarantor in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Guarantor of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents or to the extent not so repaired or replaced, apply such Net Cash Proceeds to promptly prepay such Obligations, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions or Events of Loss during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 250,000 (the “Threshold Amount”) in the aggregate so long as no Default or received on account Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests states in its notice of such event that the Borrower or the relevant Guarantor intends to reinvest, within 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition or other assets useful in the Borrower’s or such Guarantor’s business, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofsuch 180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary such Guarantor has reinvested such Net Cash Proceeds in such similar or other useful assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds not so reinvested, provided, that if at the end of such 180-day period such Net Cash Proceeds are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so reinvestedexpended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360 days following the applicable Disposition. The amount of each such prepayment shall be applied applied, first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of in the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 or in any permitted reinvestment.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary Guarantor shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (including Indebtedness issued A) any sales or incurred under Sections 1.16, 1.18 and 1.19 (but excluding Section 1.20 issuances of equity securities to the Borrower or any Indebtedness incurred as a Permitted Refinancing Guarantor, or (B) equity securities of all or a portion the Parent issued in connection with the exercise of existing Term Loans employee stock options that do not give rise to Net Cash Proceeds in excess of any Class))$2,500,000 in the aggregate, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Guarantor in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Guarantor of Net Cash Proceeds of such issuance, 100% the Borrower shall prepay the Obligations in an aggregate amount equal to the Equity Issuance Prepayment Percentage of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof 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 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date the Borrower or any Guarantor shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(n) 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 Guarantor in respect thereof. Promptly upon receipt by the Borrower to or such Guarantor of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant 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 and in the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull 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.
(iiiiv) If Within 100 days after the end of each fiscal year of the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction (commencing with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcofiscal year ending December 31, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”2010), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in Obligations by an aggregate amount equal to 100% the Excess Cash Flow Prepayment Percentage of Excess Cash Flow of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodParent, the Borrower shall notify and its Subsidiaries for the Administrative Agent whether most recently completed fiscal year of the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionBorrower. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit.
(ivv) At The Borrower shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof or otherwise, prepay the Second Amendment Effective Date until Revolving Loans, Swing Loans, and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondL/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.9(b) shall be applied first to prepay outstanding Revolving 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 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower any Credit Party or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $250,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then the (x) Borrower Representative 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 such Credit Party or any Restricted such Subsidiary in respect thereof) and, and (y) promptly (and in any event within five two (52) Business Days after Days) upon receipt by any Credit Party or the receipt Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in Borrower Representative’s notice within such assets or one hundred eighty (B180) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofday period. Promptly after the end of such 12-month or 18-month one hundred eighty (180) day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the Borrower such Credit Party or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsBorrower Representative’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied to (in the relevant outstanding Term order determined by Agent) the Revolving Loans, Swing Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullReimbursement Obligations.
(ii) If after the Restatement Closing Date the Borrower Date, any Credit Party or any Restricted Subsidiary shall issue incur or incur assume any Indebtedness for Borrowed Money, (other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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)6.11 hereof), the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds assumption to be received by or for the Borrower account of such Credit Party or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply upon receipt by such amounts Credit Party or such Subsidiary of Net Cash Proceeds of such incurrence or assumption Borrowers shall prepay the Obligations in excess the amount of $100,000,000 first, such Net Cash Proceeds. The amount of each such prepayment shall be applied to prepay outstanding Swing (in the order determined by Agent) the Revolving Loans, and second, to prepay outstanding Revolving Loans.Swing
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Addus HomeCare Corp)
Mandatory. (i) If Subject to Subsection 2.05(b)(vi), in the event, and on each occasion, that any Net Cash Proceeds are received by or on behalf of the Borrower or any Restricted Subsidiary shall at of its Subsidiaries in respect of any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossPrepayment Event, then the 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 respect thereof) andshall, within five (5) Business Days after the receipt of such Net Cash ProceedsProceeds are received (or, in the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with case of a commensurate permanent reduction Prepayment Event described in clause (b) of the relevant Revolving Credit Commitmentsdefinition of the term “Prepayment Event”, on or before the next succeeding Business Day following the occurrence of such Prepayment Event), prepay the Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (xsuch mandatory prepayments to be applied as set forth in clause (ii) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Periodbelow); provided that, in the case of any Disposition or Event of Loss not covered by event described in clause (xa) aboveof the definition of the term “Prepayment Event”, so long as no Event of Default has shall have occurred and be continuing and notice of the intent to utilize the reinvestment provisions of this proviso is continuingprovided to the Administrative Agent prior to the date such prepayment would otherwise be required to be made, if the Borrower and/or any of its Subsidiaries invests (Aor commits to invest) actually reinvests the Net Cash Proceeds from such event (or a portion thereof) within 365 days after receipt of such Net Cash Proceeds in assets used or useful in the business of the Borrower and its Subsidiaries, then no prepayment shall be required pursuant to this paragraph in respect of such Net Cash Proceeds from such Prepayment Event (or the applicable portion of such Net Cash Proceeds, within 12 months of if applicable, with any balance required to be utilized to prepay the receipt thereof, Loans in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, accordance with this provision) except to the extent of any such Net Cash Proceeds are actually reinvested in therefrom that have not been so invested (or committed to be invested) by the end of such assets 365-day period (or (B) states in a notice delivered if committed to be so invested within 12 such 365-day period, have not been so invested within 18 months after the date of the receipt of such Net Cash Proceeds), that the Borrower or at which time a Restricted Subsidiary has committed prepayment shall be required in an amount equal to reinvest such Net Cash Proceeds that have not been so invested.
(ii) Unless otherwise agreed to by the Lenders (including pursuant to the Intercreditor Agreement), each prepayment of the Loans pursuant to Section 2.05(b)(i) shall be applied ratably (1) first to the outstanding principal amount of the Initial B Loans as of such date, (2) second, pro rata to the outstanding principal of the Initial A Loans and the Delayed Draw Loan (if any), as of such date and payment shall be made to the appropriate Lenders in assets that perform accordance with their respective Pro Rata Share as of such date, and (3) thereafter the same or similar function amount, if any, remaining after the repayment in full of the Loans may be retained by the Borrower for use in the business ordinary course of the Borrower or a Restricted Subsidiary, to the 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 its business.
(iii) The Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has reinvested such Net Cash Proceeds in such assets, and, writing of any mandatory prepayment of Loans required to be made pursuant this Section 2.05(b) at least three (3) Business Days prior to the extent date of such Net Cash Proceeds have not been so reinvested, prepayment. Each such notice shall specify the Borrower shall promptly prepay first, the relevant Term Loans, date of such prepayment and second, the relevant Revolving Loans, together with provide a commensurate permanent reduction reasonably detailed calculation of the relevant Revolving Credit Commitments, in the aggregate amount of such Net Cash Proceeds prepayment to be made by the Borrower. Except as provided in excess Section 2.17, each mandatory prepayment of Loans shall be without premium or penalty. The Administrative Agent will promptly notify each Lender of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction contents of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ii) If after Borrower’s prepayment notice and of such Lender’s Pro Rata Share of 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 (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 prepayment. Each Lender may reject all or a portion of existing Term Loans its Pro Rata Share of any Classmandatory prepayment (such declined amounts, the “Declined Proceeds”) of Loans required to be made pursuant to clause (b)(i) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m., New York time, two (2) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans. Any Declined Proceeds remaining shall be retained by the Borrower (or the applicable Restricted Subsidiary) and may be applied by the Borrower or such Restricted Subsidiary in any manner not prohibited by this Agreement.
(iv) All prepayments under this Section 2.05 shall be accompanied by all accrued and unpaid interest thereon.
(v) Notwithstanding anything to the contrary contained in any other provision of this Section 2.05(b), to the extent any mandatory prepayment required pursuant to Section 2.05(b)(i) (without giving effect to this Section 2.05(b)(v)) is attributable to a Prepayment Event by a Foreign Subsidiary of the Borrower or an Excluded Domestic Subsidiary, no such prepayment (or a portion thereof) shall be required to be made if either (A) such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) shall, at the time it is required to be made, be prohibited by applicable Requirement of Law (including by reason of financial assistance, corporate benefit, restrictions on upstreaming or transfer of cash intra group and the fiduciary and statutory duties of the directors of relevant Subsidiaries), provided that the Borrower and its Subsidiaries shall make commercially reasonable efforts with respect to such Requirement of Law to permit such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) in accordance therewith (it being understood that such efforts shall not require (x) any expenditure in excess of a nominal amount of funds or (y) modifications to the organizational or tax structure of the Borrower and its Subsidiaries to permit such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment)), or (B) a Restricted Payment or other distribution is reasonably necessary (notwithstanding the Loan Parties’ commercially reasonable efforts to make such mandatory prepayment without making such Restricted Payment or other distribution) in connection with such prepayment (or portion thereof) and the Borrower determines in good faith that the Borrower or any Subsidiary would incur a material liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution (outside of any taxes applicable to such Prepayment Event that both (x) are deducted in calculating the Net Cash Proceeds thereof and (y) would be incurred even if no such Restricted Payment or other distribution were made). Notwithstanding anything in the preceding sentence to the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) required under Section 2.05(b)(i), the Borrower shall promptly notify make such prepayment in an amount equal to the Administrative Agent lesser of (x) the estimated Net Cash Proceeds amount of such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower prepayment previously required to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving have been made without having given effect to such Prepayment Sale/Leaseback Transaction limitations or restrictions and (y) the application amount of cash and Cash Equivalents on hand at such time, in each case, less the amount by which the Net Cash Proceeds thereof as from the Prepayment Event were previously used for the permanent repayment of Indebtedness (including any reductions in commitments related thereto).
(vi) Notwithstanding anything to the last day contrary, no prepayment of Loans shall be required pursuant to this Section 2.05(b), (x) if such prepayment is prohibited by the most recently ended fiscal quarter for which financial statements are available on Intercreditor Agreement or (y) prior to the date “Discharge of First Priority Obligations” (as defined in the Intercreditor Agreement) if such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 amounts are applied to 1.00prepay the “First Priority Obligations” (as defined in the Intercreditor Agreement), the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received as required by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving First Lien Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAgreement.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Mandatory. (i) If the any Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) belowDispositions permitted under Section 6.13(r)) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers, then (x) the Borrower Borrowers 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 such Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by such Borrower or such Subsidiary of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrowers state in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrowers’ notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof365‑day period. Promptly after the end of such 12-month or 18-month 365‑day period, as applicable, the Borrower Borrowers shall notify the Administrative Agent whether the such Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrowers’ notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrowers not so invested or reinvested. The amount of each such prepayment shall be applied then to the relevant outstanding Term U.S. Revolving Loans and the Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and the Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof).
(ii) If after the Closing Restatement Effective Date the any Borrower or any Restricted Subsidiary shall issue any new equity securities (other than equity securities issued to any director, manager, or employee as part of an employee incentive program, equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and, so long as no Event of Default exists at the time of any such issue, any Designated Canadian Equity Issuances, if any) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant Term U.S. Revolving Loans and the relevant Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof). The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If The Borrowers shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time U.S. Commitments are reduced pursuant to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell Section 2.9, prepay the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property HoldcoU.S. Revolving Loans and, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)if necessary, U.S. Swing Loans and, if necessary, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application accordance with Section 4.5, Cash Collateralize 103% of the Net Cash Proceeds thereof as then-outstanding U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant U.S. Revolving Loans, together with a commensurate permanent reduction of U.S. Swing Loans and U.S. L/ C Obligations then outstanding to the relevant amount to which the Commitments have been so reduced; and the Borrowers shall, on each date the Canadian Commitments are reduced pursuant to Section 2.9, prepay the Canadian Revolving Credit CommitmentsLoans and, if necessary, Canadian Swing Loans and, if necessary, in an aggregate amount equal to 100accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of all such Net Cash Proceeds; providedCanadian Revolving Loans, that this subsection (iii) shall not require any prepayment of Term Canadian Swing Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Saleand Canadian L/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, C Obligations then outstanding to the extent such Net Cash Proceeds amount to which the Commitments have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.reduced; and
(iv) At Unless the end Borrowers otherwise direct, prepayments of Loans under this Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans and Canadian Prime Rate Loans, as the case may be, until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans and Canadian CDOR Loans, as the case may be, in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Eurodollar Loans or Canadian CDOR Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If Within one hundred twenty (120) days following the end of each Fiscal Year, the Borrower shall execute and deliver to the Administrative Agent a certificate of the Borrower's Chief Executive Officer or any Restricted Subsidiary shall at any time or from time to time make a Disposition Chief Financial Officer demonstrating its calculation of Excess Cash Flow for such Fiscal Year (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which except that in the case of Fiscal Year 2002, such calculation shall be subject made for the period from the Business Day immediately following the Closing Date through the end of such Fiscal Year) along with a prepayment of the then outstanding Advances equal to subsection fifty percent (iii50%) below) of the annual Excess Cash Flow if the ratio of Consolidated Funded Debt to EBITDA at the end of such Fiscal Year equals or shall suffer an Event is greater than 2.50:1; provided, however, that if the ratio of LossConsolidated Funded Debt to EBITDA, measured at the end of such Fiscal Year of the Borrower (after giving pro forma effect to making of such prepayment), for such Fiscal Year of the Borrower, is less than 2.50:1, then the Borrower required prepayment of the then outstanding Advances shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including be in the amount of twenty-five percent (25%) of the estimated Net annual Excess Cash Proceeds to be received Flow.
(ii) Within five (5) days after receipt by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such its Subsidiaries of Net Cash ProceedsProceeds from Asset Dispositions, unless such proceeds may be reinvested in accordance with the definition of "Asset Disposition," the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, then outstanding Advances in an aggregate amount equal to one-hundred percent (100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x%) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds in excess of $2,000,000 in any Fiscal Year. In the applicable $2,500,000 basket described above not so reinvested. The amount of each event that such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) Net Cash Proceeds have been reinvested in accordance with this Section 1.9 until paid the definition of "Asset Disposition" and were not used within such one hundred eighty (180) day period as required thereby, then Borrower shall, on the first Business Day after such one hundred eighty (180) day period, prepay the then outstanding Advances in fullan amount equal to the amount of such Net Cash Proceeds which have not been so reinvested.
(iiiii) 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 (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 (5) Business Days days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary of its Subsidiaries of Net Cash Proceeds from any Debt Issuance, the Borrower shall prepay the then outstanding Advances in respect thereofan amount equal to one hundred percent (100%) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, .
(iv) Within five (5) days after receipt by the Borrower shall prepay firstor any of its Subsidiaries of Net Cash Proceeds from any Equity Issuance, the relevant Term Loansfifty percent (50%), and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection the Borrower may retain an amount up to one hundred percent (100%) of such Net Cash Proceeds to the extent that (x) such Net Cash Proceeds are derived from a Qualified Initial Public Offering or from a subsequent Public Offering of common shares by the Borrower to redeem its series B redeemable preferred stock (including accrued and unpaid dividends thereon) and (y) after giving effect to such transaction, the ratio of Consolidated Funded Debt to EBITDA is equal to or less than 3.00 to 1.00. Concurrently with the consummation of such transaction the proviso set forth in Section 8.1 shall be in effect.
(v) Within five (5) days after receipt of Net Cash Proceeds by the Borrower or any of its Subsidiaries from any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries and not otherwise included in clause (i), (ii) or (iii) shall not require any prepayment of Term Loans above, unless the Borrower or Revolving Loans such Subsidiary intends in good faith to reinvest such proceeds in accordance with the Net Cash Proceeds definition of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, "Extraordinary Receipt," the Borrower shall notify prepay the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested then outstanding Advances in an amount equal to one hundred percent (100%) of such Net Cash Proceeds in excess of $2,000,000 in any Fiscal Year.
(vi) Each prepayment made pursuant to clause (ii), (iii) or (v) shall be subject to the provisions of Section 11.4(c) and shall be applied to prepay the Facilities in the following manner: first, ratably to the Term A Facility and the Term B Facility, and ratably to each unpaid installment of principal of each of the Term Facilities until such assets, andinstallments are paid in full; second, to prepay Swing Line Advances then outstanding until such Advances are paid in full; third, to prepay Revolving Credit Advances and Letter of Credit Advances then outstanding (whereupon the extent such Net Cash Proceeds have not been so reinvested, the Borrower Revolving Credit Facility shall promptly prepay the relevant Term Loans or Revolving Loans be permanently reduced as set forth in Section 2.5(b)(iv) in the amount of such Net prepayment) until such Revolving Credit Advances are paid in full; and fourth, deposited in the L/C Cash Proceeds received from Collateral Account to cash collateralize 100% of the applicable Prepayment Sale/Leaseback TransactionAvailable Amount of the Letters of Credit then outstanding and within any of the foregoing Facilities, unless otherwise designated by the Borrower, such prepayments shall be applied first to the payment of Prime Rate Advances and second to the payment of Eurodollar Rate Advances. The amount Each prepayment made pursuant to clause (i) or (iv) shall be subject to the provisions of each such prepayment Section 11.4(c) and shall be applied to prepay the relevant outstanding Term Loans A Facility and Revolving Loans (with the Term B Facility on a permanent reduction ratable basis, and ratably to each unpaid installment of principal of each of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 Term Facilities until such installments are paid in full. Upon the drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied to reimburse the applicable Issuing Bank or the Revolving Credit Lenders, as applicable. The amount remaining (if any) after the required prepayment of the Advances then outstanding and the 100% cash collateralization of the aggregate Available Amount of Letters of Credit then outstanding (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being referred to herein as the "Reduction Amount") may be retained by the Borrower. Upon the termination of all of the Commitments and the final payment in full of all Obligations, including, without limitation, termination or expiration of all Letters of Credit and the final payment in full of all Obligations in respect of all Letters of Credit, then all amounts remaining on deposit in the L/C Cash Collateral Account shall be returned to the Borrower.
(ivvii) At The Borrower shall, within fifteen (15) days following the end of each month in each Fiscal Year, pay to the Administrative Agent for deposit in the 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 exceeds the Letter of Credit Facility on such Business Day.
(viii) At any Business Day from time that the aggregate amount of Revolving Credit Advances, Letter of Credit Advances, Swing Line Advances and after the Second Amendment Effective Date until aggregate Available Amount of all Letters of Credit, in each case outstanding, exceeds the end of the Basket Suspension Period, if HoldingsRevolving Credit Facility, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess shall immediately repay Revolving Credit Advances to the extent necessary to reduce the principal balance of $100,000,000Revolving Credit Borrowings to an amount equal to or less than the Revolving Credit Facility.
(ix) The foregoing notwithstanding, then the Borrower provisions of this Section 2.6(b) shall promptly (and in not be construed to permit any event within two (2) Business Days) apply such amounts in excess Equity Issuance, Debt Issuance or Asset Disposition otherwise prohibited under the terms of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansthis Agreement.
Appears in 1 contract
Sources: Credit Agreement (Team Health Inc)
Mandatory. (i) If the any Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers, then (x) the Borrower Borrowers 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 such Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by such Borrower or such Subsidiary of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrowers state in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrowers’ notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof365‑day period. Promptly after the end of such 12-month or 18-month 365‑day period, as applicable, the Borrower Borrowers shall notify the Administrative Agent whether the such Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrowers’ notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrowers not so invested or reinvested. The amount of each such prepayment shall be applied then to the relevant outstanding Term U.S. Revolving Loans and the Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and the Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof).
(ii) If after the Closing Effective Date the any Borrower or any Restricted Subsidiary shall issue any new equity securities (other than equity securities issued to any director, manager, or employee as part of an employee incentive program, equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and, so long as no Event of Default exists at the time of any such issue, any Designated Canadian Equity Issuances, if any) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant Term U.S. Revolving Loans and the relevant Canadian Revolving Loans on a ratable basis (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in fullfull and then to the U.S. Swing Loans and Canadian Swing Loans on a ratable basis (in accordance with the outstanding principal amounts thereof). The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If The Borrowers shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time U.S. Commitments are reduced pursuant to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell Section 2.9, prepay the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property HoldcoU.S. Revolving Loans and, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)if necessary, U.S. Swing Loans and, if necessary, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application accordance with Section 4.5, Cash Collateralize 103% of the Net Cash Proceeds thereof as then-outstanding U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant U.S. Revolving Loans, together with a commensurate permanent reduction of U.S. Swing Loans and U.S. L/C Obligations then outstanding to the relevant amount to which the Commitments have been so reduced; and the Borrowers shall, on each date the Canadian Commitments are reduced pursuant to Section 2.9, prepay the Canadian Revolving Credit CommitmentsLoans and, if necessary, Canadian Swing Loans and, if necessary, in an aggregate amount equal to 100accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of all such Net Cash Proceeds; providedCanadian Revolving Loans, that this subsection (iii) shall not require any prepayment of Term Canadian Swing Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Saleand Canadian L/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, C Obligations then outstanding to the extent such Net Cash Proceeds amount to which the Commitments have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.reduced; and
(iv) At Unless the end Borrowers otherwise direct, prepayments of Loans under this Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans and Canadian Prime Rate Loans, as the case may be, until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans and Canadian CDOR Loans, as the case may be, in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Eurodollar Loans or Canadian CDOR Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time after the Closing Date make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $1,500,000 individually or on a cumulative basis for all such Dispositions and Events of Loss in any fiscal year of the Borrower (such excess amount the “Excess Net Cash Proceeds”), then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or of such Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, shall pay accrued interest to the relevant Revolving date of such prepayment on the aggregate principal amount being prepaid (or prepay the Loans, together with a commensurate permanent reduction and pay accrued interest to the date of such prepayment on the relevant Revolving Credit Commitmentsaggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in an aggregate amount equal to 100% of the amount of all such Excess Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to reinvest, within 90 days of the receipt by it of Net Cash Proceeds from such Disposition or Event of Loss not covered by clause (x) aboveLoss, 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 has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of such Excess 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, Proceeds to the extent such Excess Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has reinvested such Excess Net Cash Proceeds in such similar assets, and, and to the extent such Excess Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, shall pay accrued interest to the relevant Revolving date of such prepayment on the aggregate principal amount being prepaid (or prepay the Loans, together with a commensurate permanent reduction and pay accrued interest to the date of such prepayment on the relevant Revolving Credit Commitmentsaggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in the amount of such Excess 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 on a ratable basis among the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction Obligations of the relevant Revolving Credit Commitments) in accordance with several Lenders based on the principal amounts thereof. The Borrower may elect to defer any prepayment required under this Section 1.9 1.8(b)(i) until paid the end of the applicable Interest Period of one or more Borrowings of Eurodollar Loans so as to avoid incurring funding indemnity costs under Section 1.11 hereof, provided that cash in fullthe amount of any prepayment so deferred shall be deposited by the Borrower in a non-interest bearing blocked cash collateral account with the Administrative Agent during the period of such deferral.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (x) shares of common stock of the Borrower issued in its initial public offering (including Indebtedness any shares issued or incurred under Sections 1.16pursuant to an over-allotment offering), 1.18 (y) equity securities issued in connection with the exercise of employee stock options and 1.19 (but excluding Section 1.20 or any Indebtedness incurred as z) capital stock issued to the seller of an Acquired Business in connection with a Permitted Refinancing of all or a portion of existing Term Loans of any Class))Acquisition, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Loans, and shall pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid (5) Business Days after receipt thereofor prepay the Loans, and pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in an aggregate amount equal to 100% of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied on a 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 8.11 hereof or any other terms of this Agreement. The Borrower may elect to defer any prepayment required under this Section 1.8(b)(ii) until the end of the applicable Interest Period of one or more Borrowings of Eurodollar Loans so as to avoid incurring funding indemnity costs under Section 1.11 hereof, provided that cash in the amount of any prepayment so deferred shall be deposited by the Borrower in a non-interest bearing blocked cash collateral account with the Administrative Agent during the period of such deferral.
(iii) 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)-(h) 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 relevant Term Loans Loans, and shall pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid (or prepay the Loans, and pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in an aggregate amount equal to 100% of such Net Cash Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the relevant Revolving Loans (with a permanent reduction outstanding Obligations of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullseveral 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. The Borrower may elect to defer any prepayment required under this Section 1.8(b)(iii) until the Loan Documents.
(iii) If end of the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to applicable Interest Period of one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred Borrowings of Eurodollar Loans so as to herein as a “Prepayment Sale/Leaseback Transaction”)avoid incurring funding indemnity costs under Section 1.11 hereof, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans cash in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such any prepayment so deferred shall be applied to deposited by the relevant outstanding Term Loans and Revolving Loans (Borrower in a non-interest bearing blocked cash collateral account with a permanent reduction the Administrative Agent during the period of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullsuch deferral.
(iv) At The Borrower shall, on each date the end Revolving Credit Commitments are reduced pursuant to Section 1.12 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 (such term being understood to refer to the aggregate amount of such Commitments in effect at such time, whether used or unused) have been so reduced.
(v) 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 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 Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Eurodollar Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Sources: Credit Agreement (Lincoln Educational Services Corp)
Mandatory. (i) If the any Borrower or any Restricted Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then the Borrower Representative 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 such Borrower or any Restricted Subsidiary such Guarantor in respect thereof) and, within five (5) Business Days after promptly upon receipt by such Borrower or such Guarantor of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate or received on account of Events of Loss during any Fiscal Year fiscal year of the Borrower Parent not exceeding $2,500,000 500,000 (the “Threshold Amount”) in the aggregate so long as no Default or Event of Default then exists, and (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Representative states in its notice of such event that the relevant Borrower or the relevant Guarantor intends to reinvest, within 180 days of the applicable Disposition or Event of Loss, the Net Cash Proceeds thereof in Property similar to the Property which were subject to such Disposition or other assets useful in such Borrower’s or such Guarantor’s business, then the Borrowers shall not be required to make a mandatory prepayment under this subsection in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such assets similar Property or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested other Property useful in such assets Borrower’s or such Guarantor’s business within 18 months following the receipt thereofsuch 180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the such Borrower or a Restricted Subsidiary such Guarantor has reinvested such Net Cash Proceeds in such assetssimilar or other useful Property, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds not so reinvested, provided, that if at the end of such 180-day period such Net Cash Proceeds are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so reinvestedexpended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360 days following the applicable Disposition. The amount of each such prepayment shall be applied applied, first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of in the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment). If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 Representative’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property or in any permitted reinvestment.
(ii) If after the Closing Date the any Borrower or any Restricted Subsidiary Guarantor shall issue or incur any Indebtedness for Borrowed MoneyIndebtedness, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))hereof, the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of such Borrower or such Guarantor in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and in the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit. The Borrower acknowledges Borrowers acknowledge that its their 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 Within 100 days after the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction end of each fiscal year of the Parent (commencing with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcofiscal year ending December 31, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”2013), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect Borrowers shall prepay the Obligations by an amount equal to such (x) the Excess Cash Flow Prepayment Sale/Leaseback Transaction and the application Percentage of Excess Cash Flow of the Net Cash Proceeds thereof as of Parent, the last day of Borrowers and their respective Subsidiaries for the most recently ended completed fiscal quarter for which financial statements are available on or prior year of the Parent minus (y) (i) the aggregate principal amount of Term Loans voluntarily prepaid by the Borrowers pursuant to Section 1.9(a) during such fiscal year, and (ii) the aggregate principal amount of Revolving Loans voluntarily prepaid by the Borrowers (to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received extent accompanied by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate an equivalent permanent reduction of the relevant Revolving Credit CommitmentsCommitment pursuant to Section 1.13(a) hereof) during such fiscal year, in an each case, excluding the aggregate amount equal to 100% of the principal amount of all any such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans voluntary prepayments made with the Net Cash Proceeds proceeds of a Prepayment Sale/Leaseback Transaction incurrences of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionIndebtedness. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of in the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment).
(iv) At The Borrowers shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof or otherwise, prepay the Second Amendment Effective Date until Revolving Loans, Swing Loans, and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if HoldingsSwing Loans, and L/C Obligations then outstanding to the Borrower amount to which the Revolving Credit Commitments have been so reduced.
(v) If at any time the sum of the (i) aggregate Original Dollar Amount of Revolving Loans, (ii) the aggregate Original Dollar Amount of Swing Loans and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents (iii) the aggregate U.S. Dollar Equivalent of all L/C Obligations then outstanding shall be in excess of $100,000,000the Revolving Credit Commitments in effect at such time, then the Borrower Borrowers shall promptly (and but in any event within two one (21) Business DaysDay) apply upon notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Revolving Credit Lenders as a mandatory prepayment of the Obligations, with each such amounts prepayment first to be applied to the Revolving Loans and Swing Loans until paid in excess 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 $100,000,000 firstCredit.
(vi) Unless the Borrower Representative otherwise directs, prepayments made under this Section 1.9(b) in U.S. Dollars shall be applied first to prepay outstanding Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans denominated in U.S. Dollars in the order in which their Interest Periods expire and prepayments made in Alternative Currencies under this Section 1.9(b) shall be applied to Borrowings in such Alternative Currency 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 Eurocurrency Loans or Swing Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe 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 9.4 hereof.
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Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (xy) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period Holdco (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At The Borrower shall, on each date any Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the end of any Business Day from and after Revolving Loans, Swing Loans, and, if necessary, pre-fund the Second Amendment Effective Date until L/C Obligations (or make other arrangements reasonably satisfactory to the end L/C Issuer) by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondU.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.
(v) Unless the Borrower otherwise directs, prepayments of Loans of any type under this Section 1.9(b) shall be applied first to prepay outstanding 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.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be in excess of the Revolving Credit Commitments of such Class in effect at such time, 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 Revolving Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
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Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Lossreceives Debt Incurrence Proceeds, then the 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 respect thereof) and, within five (5) not later than two Business Days after following the receipt of such Net Cash Proceedsproceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of such Debt Incurrence Proceeds. The Borrower shall pay the Make-Whole Payment (to the extent such Make-Whole Payment is required to be made pursuant to the terms of this Agreement) in connection with such prepayment.
(ii) If any Credit Party completes a Disposition permitted under Section 6.8(a)(vi), then the Borrower shall, no later than three Business Days following the completion of such Disposition and in an amount equal to 100% of the Net Cash Proceeds received from such Disposition to prepay the outstanding principal amount of all the Term Loans until such time as the Term Loans are repaid in full; provided that, (A) if no Default exists or would arise therefrom, then such Net Cash Proceeds; provided that this subsection Proceeds shall not require any be required to be so applied on such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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, date to the extent that Borrower shall have delivered written notice to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are actually reasonably expected to be reinvested in fixed or capital assets of any Credit Party within 270 days following the date the Borrower or such assets or (B) states in a notice delivered within 12 months of the receipt of Subsidiary received such Net Cash ProceedsProceeds (which notice shall set forth the estimates of the amounts to be so expended) (for the avoidance of doubt, that if the Disposition involves Collateral and the Borrower or a Restricted Subsidiary has committed will reinvest the Net Cash Proceeds from such Disposition, the Borrower shall be required to reinvest such Net Cash Proceeds in assets that perform the same Collateral); (B) if all or similar function in the business any portion of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually not reinvested within such 270-day period as provided in such assets within 18 months following the receipt thereof. Promptly after the end clause (A) above, then 100% 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 unused portion shall be applied to the relevant outstanding Term Loans Loan on the last day of such period as provided above; and Revolving Loans (with a permanent reduction C) if an Event of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (including Indebtedness issued or incurred under Sections 1.16, 1.18 Default exists 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))such Net Cash Proceeds are insurance proceeds, the Borrower shall promptly notify turn such proceeds over to the Administrative Agent for application to the Term Loan; provided further, that such 270-day period shall be extended by up to an additional 90 days in the event that a Credit Party has entered into a bona fide binding contract committing to acquire or construct such fixed or capital assets with a Person other than an Affiliate of the estimated Net Cash Proceeds of Borrower within such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of 270-day period and such Net Cash Proceeds shall be are subsequently applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documentssuch contract.
(iii) If the Borrower or any Restricted Subsidiary shall at receives any time Extraordinary Receipts (whether from a single Casualty Event or from time to time enter into related series of Casualty Events and whether as one payment or a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell series of payments) in excess of $250,000 in the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease aggregate since the Principal Owned Property owned by such Principal Owned Property HoldcoEffective Date, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, then the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) andshall, within no later than five (5) Business Days after following the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, excess Extraordinary Receipts and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceedsexcess Extraordinary Receipts, prepay the outstanding principal amount of the Term Loans until such time as the Term Loans are repaid in full; providedprovided that, that this subsection (iiiA) if no Default exists or would arise therefrom, then such excess Extraordinary Receipts shall not require be required to be so applied on such date to the extent that Borrower shall have delivered written notice 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 prepayment Credit Party within 270 days following the date the Borrower or such Subsidiary received such Extraordinary Receipts (which notice shall set forth the estimates of Term Loans or Revolving Loans with the Net Cash Proceeds amounts to be so expended) (for the avoidance of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property doubt, if the Casualty Event involves Collateral and the Borrower actually reinvests will reinvest the Extraordinary Receipts from such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodCasualty Event, the Borrower shall notify the Administrative Agent whether the Borrower be required to reinvest such Extraordinary Receipts in Collateral); (B) if all or a Restricted Subsidiary has so 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 or Revolving Loans in the amount any portion of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount Extraordinary Receipts are not reinvested within such 270-day period as provided in clause (A) above, then 100% of each such prepayment unused portion shall be applied to the relevant outstanding Term Loans Loan on the last day of such period as provided above; and Revolving Loans (C) if an Event of Default exists and such Extraordinary Receipts are insurance proceeds, the Borrower shall turn such proceeds over to the Administrative Agent for application to the Term Loan; provided further, that such 270-day period shall be extended by up to an additional 90 days in the event that a Credit Party has entered into a bona fide binding contract committing to acquire or construct such fixed or capital assets with a permanent reduction Person other than an Affiliate of the relevant Revolving Credit Commitments) Borrower within such 270-day period and such excess Extraordinary Receipts are subsequently applied in accordance with this Section 1.9 until paid in fullsuch contract.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $1,000,000 (or the U.S. Dollar Equivalent thereof, if applicable) individually or on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, first the relevant Term Loans, Loans in the manner specified in Section 1.9(e) hereof until the Term Loans are paid in full and second, then the relevant Revolving Loans, together with a commensurate permanent reduction Swing Loans and L/C Obligations (or all outstanding Loans and L/C Obligations if an Event of the relevant Revolving Credit Commitments, Default exists) in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to reinvest, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in assets for use in the ordinary course of the Borrower’s or the applicable Subsidiary’s business as then conducted, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans (or Revolving all outstanding Loans and L/C Obligations if an Event of Default exists) in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionnot so reinvested. The amount of each such prepayment shall be applied to on a ratable basis among the relevant outstanding Term Loans Obligations based on the principal amounts (in the U.S. Dollar Equivalent) thereof. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and Revolving Loans (with a permanent reduction held by it in the Collateral Account. So long as no Default or Event of Default exists, the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAdministrative 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.
(ivii) At the end of any Business Day from and If after the Second Amendment Effective Closing Date until the end of the Basket Suspension Period, if Holdings, 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 their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents capital stock issued to the seller of an Acquired Business in excess of $100,000,000connection with an Acquisition permitted hereby, then 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 first the Term Loans in the manner specified in Section 1.9(e) hereof until the Term Loans are paid in full and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing then the Revolving Loans, Swing Loans and secondL/C Obligations (or all outstanding Loans and L/C Obligations if an Event of Default exists), in an aggregate amount equal to prepay 100% (or 50% if the Borrower’s Total Senior Funded Debt/EBITDA Ratio was less than 2.0 to 1.0 for the two consecutive fiscal quarters immediately preceding the date of such required payment) of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the relevant outstanding Revolving Loans.Obligations based on the principal amounts (in U.S. Dollar Equivalent)
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the Borrower; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in assets used or useful in the business, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofone hundred eighty (180) day period. Promptly after the end of such 12-month or 18-month one hundred eighty (180) day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrower not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) ). If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in accordance with this Section 1.9 until paid in fullthe 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 Restatement Effective Date the Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans until paid in full, and then to the relevant Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) 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 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrowers shall immediately upon notice (and, in any event, within one (1) Business Day of such notice) 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 until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iv) If after the Restatement Effective Date the Borrower or any Restricted Subsidiary shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionProceeds. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) Within 120 days after the end of each fiscal year, the Borrower shall prepay the then-outstanding Loans by an amount equal to the Applicable ECF Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower, minus the sum of (1) all voluntary prepayments of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all voluntary prepayments of Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (1) and (2), (x) to the extent such prepayments are funded with internally generated cash and (y) excluding any such voluntary prepayments made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section 2.8(b)(v) in the prior fiscal year, and (3) all mandatory prepayments made pursuant to Section 2.8(b)(ix).
(vi) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, in accordance with this Section 1.9 until paid in full4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ivvii) At Upon the end occurrence of a Change of Control, concurrently with the closing of any Business Day from and after such transaction, at the Second Amendment Effective Date until the end election of the Basket Suspension Period, if HoldingsAdministrative Agent and the Required Lenders, the Borrower shall (A) repay the Loans in full by payment of the outstanding principal of and their Restricted Subsidiaries hold Unrestricted cash the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (B) Cash Equivalents Collateralize 105% of the then outstanding amount of all L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Prime Rate Loans until payment in excess full thereof with any balance applied to Borrowings of $100,000,000SOFR Loans. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, then in the case of any Term Loans or SOFR Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
(ix) Upon the Borrower or any Subsidiary’s receipt of Net Claim Proceeds from the Legacy Claims, the Borrower shall promptly (and prepay any then-outstanding Term Loan Obligations by an amount equal to the Net Claim Proceeds received from such Legacy Claim; provided, however, in any no event within two (2will the prepayments under this Section 2.8(b)(ix) Business Dayswhen combined with prepayments under Section 2.8(b)(v) apply such amounts exceed $6,000,000 in excess the aggregate during the term of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansthis Agreement.
Appears in 1 contract
Mandatory. (i) If Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition of its Subsidiaries (other than a Sale/Leaseback Transaction with any Excluded Joint Venture) in respect of its property or assets, after the first $50,000,000 of Net Cash Proceeds relating to a Principal Owned Property which any Extraordinary Receipts in the aggregate since the Closing Date, and thereafter any amount in excess of $5,000,000 for any one event or series of related events, the Borrower shall be prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to subsection the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the assets or property in respect of which the Extraordinary Receipt was received, it shall suffer an Event deliver written notice of Losssuch intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Net Cash Proceeds, then (B) if the Borrower shall promptly notify have delivered such notice, the Administrative Agent of such Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to thereof may be received by the Borrower or any Restricted Subsidiary in respect thereof) and, reinvested so long as within five (5) Business Days 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or unreasonably delayed, and is substantially completed within 12 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) and (C) within 10 days of the date the Borrower consummates such restoration, repair or replacement or purchase, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(i); provided further that any Net Cash Proceeds not so reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(ii) If the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) Disposes of any property (other than any Disposition of any property permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) or (k)) which results in the realization by such Person of Net Cash Proceeds, after the first $10,000,000 of Net Cash Proceeds relating to any such Dispositions in the aggregate since the Closing Date, and thereafter any amount in excess of $2,500,000 for any one event of series of related events, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds received therefrom within three Business Days after the amount date of all receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business, it shall deliver written notice of such intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Net Cash Proceeds; provided that this subsection , (B) if the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested so long as within 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have begun and so long as such reinvestment has not require any been terminated, abandoned or unreasonably delayed, and is substantially completed within 12 months after the date of receipt of such prepayment with respect to Net Cash Proceeds (xprovided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) received on account of Dispositions during any Fiscal Year and (C) within 10 days of the date the Borrower consummates such reinvestment, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(ii); provided further that any Net Cash Proceeds not exceeding $2,500,000 so reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(iii) Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied, first, ratably to the Term A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof in direct order of maturity and, thereafter, to the Revolving Credit Facility in the aggregate or received on account manner set forth in clause (iv) of Events of Loss during any Fiscal Year this Section 2.05(b).
(iv) Prepayments of the Borrower not exceeding $2,500,000 Revolving Credit Facility made pursuant to clause (i) or (ii) of this Section 2.05(b), first, shall be applied to prepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in the aggregate and (y) other than during the Basket Suspension Periodfull, second, shall be applied to prepay Swing Line Loans outstanding at such time until all such Swing Line Loans are paid in full, and, third, shall be applied to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clauses (i) or (ii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Loans and L/C Borrowings outstanding at such time, may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Disposition Letter of Credit, which has been Cash Collateralized, such funds shall be applied (without any further action by or Event notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(v) Notwithstanding the provisions of Loss not covered by clause Section 2.05(b)(i) or (xb)(ii), if any mandatory prepayments under Section 2.05(b)(i) aboveor (b)(ii) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, if the Borrower may defer the making of such mandatory prepayment until the earlier of (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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to such Interest Period and (B) the date thirty days after the date on which such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds mandatory prepayment would otherwise have been required to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullmade.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $1,000,000 (or the U.S. Dollar Equivalent thereof, if applicable) individually or on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, (A) during the relevant Availability Period, the Term Loans, and second(B) after the Availability Period, the relevant Term Loans and the Capital Expansion Loans, in each case in the manner specified in Section 1.9(e) hereof until the Term Loans and, if applicable, the Capital Expansion Loans are paid in full and then the Revolving Loans, together with a commensurate permanent reduction Swing Loans and L/C Obligations (or all outstanding Loans and L/C Obligations if an Event of the relevant Revolving Credit Commitments, Default exists) in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to reinvest, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in assets for use in the ordinary course of the Borrower’s or the applicable Subsidiary’s business as then conducted, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has reinvested such Net Cash Proceeds in such assets, and, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay first(A) during the Availability Period, the relevant Term Loans, and second(A) after the Availability Period, the relevant Revolving Term Loans and the Capital Expansion Loans, together with a commensurate permanent reduction (or in each case all outstanding Loans and L/C Obligations if an Event of the relevant Revolving Credit Commitments, Default exists) 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 on a ratable basis among the relevant outstanding Term Loans Obligations based on the principal amounts (in the U.S. Dollar Equivalent) thereof. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and Revolving Loans (with a permanent reduction held by it in the Collateral Account. So long as no Default or Event of Default exists, the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAdministrative 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 Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money 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 by Section 8.7 (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))hereby, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, (A) during the relevant Availability Period, the Term Loans, and second(B) after the Availability Period, the relevant Term Loans and the Capital Expansion Loans, in each case in the manner specified in Section 1.9(e) hereof until the Term Loans and, if applicable, the Capital Expansion Loans are paid in full and then the Revolving Loans, together with a commensurate permanent reduction Swing Loans and L/C Obligations (or all outstanding Loans and L/C Obligations if an Event of the relevant Revolving Credit CommitmentsDefault exists), in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property 50% if the Borrower actually reinvests such Net Cash Proceeds, within nine months Borrower’s Total Funded Debt Ratio was less than 2.0 to 1.0 for the two consecutive fiscal quarters immediately preceding the date of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.such
Appears in 1 contract
Sources: Credit Agreement (Penford Corp)
Mandatory. The Borrower shall make mandatory prepayments as follows:
(i) 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 related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to the product of the applicable Prepayment Percentage times the Excess Cash Flow for such Excess Cash Flow Period.
(ii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition of its Subsidiaries (other than the Immaterial ACO Subsidiaries) Disposes of any property, other than pursuant to any Excepted Disposition, and the aggregate or individual Dispositions result in the realization by such Persons of Net Cash Proceeds exceeding $10 million, the Borrower shall make a Sale/Leaseback Transaction mandatory prepayment by prepaying an aggregate principal amount of Loans equal to 100% of all such Net Cash Proceeds within five Business Days after receipt thereof by such Person; provided, however, that, with respect to any Net Cash Proceeds realized under a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event Disposition described in this Section 2.05(b)(ii), at the election of Loss, then the Borrower shall promptly notify (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition or Disposition), and so long as no Event of Loss (including Default shall have occurred and be continuing, the amount Borrower or such Subsidiary may reinvest all or any portion of the estimated such Net Cash Proceeds to be received in assets useful in the business of the Borrower or its Subsidiaries so long as (x) 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 any Restricted Subsidiary in respect thereof(y) and, within five (5) Business Days 12 months after the receipt of such Net Cash Proceeds, the Borrower or such Subsidiary shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with have entered into a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed definitive agreement to reinvest such Net Cash Proceeds in assets that perform the same or similar function useful in the business of the Borrower or a Restricted Subsidiaryits Subsidiaries, to and the extent such Net Cash Proceeds are actually reinvested in purchase of such assets shall have been consummated within 18 six months following the receipt thereof. Promptly after the end of such 12-month or 18-12 month period; and provided further, as applicablehowever, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has reinvested such that any Net Cash Proceeds in not subject to such assets, and, to the extent such Net Cash Proceeds have not been definitive agreement or so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 reinvested shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction prepayment of the relevant Revolving Credit Commitments) Loans as set forth in accordance with this Section 1.9 until paid in full2.05(b)(ii).
(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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, outstanding Loans and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to reinvest, within 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 not covered by clause (x) aboveLoss, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, outstanding Loans and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, L/C Obligations 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 on a ratable basis among the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of Obligations based on the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullprincipal amounts thereof.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money equity securities issued in connection with the exercise of employee stock options, common stock issued to fund the prepayment, redemption or purchase of Senior Notes, and capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by Section 8.7 (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))hereby, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the outstanding Loans and L/C Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the relevant outstanding Obligations 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 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) 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 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 to or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant Term outstanding Loans and L/C 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 on a ratable basis among the relevant Revolving Loans (with a permanent reduction of outstanding Obligations based on the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullprincipal 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 the Loan Documents.
(iiiiv) If The Borrower shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time Revolving Credit Commitments are reduced pursuant to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell Section 1.12 hereof, prepay the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assetsSwing Loans, and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the extent such Net Cash Proceeds have not been so reinvested, sum of the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the aggregate principal amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension PeriodLoans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondL/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 under this Section 1.8(b) shall be applied first to prepay outstanding Revolving 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 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Sources: Credit Agreement (Rent Way Inc)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 500,000 in the aggregate so long as no Default or received on account Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within ninety (A90) actually reinvests days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction obligations of the relevant Revolving Borrower under the Senior Credit Commitments) Agreement in accordance with this Section 1.9 until paid the Senior Credit Agreement and then to the outstanding Loans hereunder. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in fullthe Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from one or more separate collateral accounts (each such account, and the credit balances, properties, and any investments from time to time held therein, and any substitutions for such account, any certificate of deposit or other instrument evidencing any of the foregoing and all proceeds of and earnings on any of the foregoing being collectively called 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 Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby 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 Proceeds. The amount of each such prepayment shall be applied by first to the obligations of the Borrower to prepay under the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Senior Credit Commitments) Agreement in accordance with this Section 1.9 until paid in fullthe Senior Credit Agreement and then to the outstanding Loans hereunder. 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 Restricted Subsidiary shall at any time issue new equity securities (whether common or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property preferred stock or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcootherwise), other than equity securities issued in connection with the exercise of employee stock options or issue any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, . The Borrower acknowledges that this subsection (iii) its performance hereunder shall not require any prepayment of Term Loans or Revolving Loans with limit the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months rights and remedies of the receipt thereofLenders for any breach of Section 8.11 (Maintenance of Subsidiaries), in one Section 8.7 (Borrowings and Guaranties), or more Section 9.1(i) (Change of Control) hereof or any other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction terms of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullLoan Documents.
(iv) At Each prepayment of Loans under this Section 1.4(b) shall be made by the end of any Business Day from and after the Second Amendment Effective Date until the end payment of the Basket Suspension Period, if Holdings, principal amount to be prepaid and accrued interest thereon to the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess date of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansprepayment.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time any Loan Party or any of its Subsidiaries shall receive Net Cash Proceeds from time to time make a Disposition (x) any Asset Sale (other than any Asset Sale resulting from a Sale/Leaseback Transaction with respect Permitted Factoring Transaction) or (y) any Recovery Event and, unless and to the extent that a Principal Owned Property which Reinvestment Notice shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 delivered in respect thereof) and, the Term Loan Borrower shall, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months date of the receipt of such Net Cash Proceeds, that the Borrower Proceeds by such Loan Party or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business any of the Borrower or a Restricted Subsidiary, to the 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 its Subsidiaries prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the an aggregate principal 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount Advances equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall not require any be applied toward the prepayment of the Term Loans Advances.
(ii) If at any time any Loan Party or Revolving Loans with the any of its Subsidiaries shall receive Net Cash Proceeds from the issuance or incurrence of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if any Debt (other than any Debt permitted under Section 5.02(b) (other than any Refinancing Debt), the Term Loan Borrower actually reinvests such Net Cash Proceedsshall, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly Business Day after the end date of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount receipt of such Net Cash Proceeds received from by such Loan Party or any of its Subsidiaries, prepay the applicable Prepayment Sale/Leaseback Transaction. The Term Advances in an amount equal to 100% of such Net Cash Proceeds.
(iii) Commencing with the Fiscal Year ending December 31, 2019, not later than five Business Days after the earlier of (i) the date on which ▇▇▇▇ is required to deliver financial statements with respect of each Fiscal Year under Section 5.03(c) for such Fiscal Year and (ii) the date on which such financial statements are actually delivered, the Term Loan Borrower shall prepay the 2018 New Term B Advances in an amount equal to (A) the ECF Percentage times the amount of Excess Cash Flow for such Fiscal Year minus (B) the amount of any voluntary prepayments, repurchases or redemptions of principal during such Fiscal Year (in each case to the extent not financed with the proceeds of Funded Debt), in each case, not previously deducted pursuant to this clause (B) in any prior period of (I) Term Advances (provided that with respect to any prepayment of Term Advances below the par value thereof, the aggregate amount of such prepayment for purposes of this clause (B) shall be applied the amount of the Term Loan Borrower’s actual cash payment in respect of such prepayment) and (II) any other Debt permitted hereunder that is secured by the Collateral on a pari passu basis with the Obligations (in the case of any revolving Debt, solely to the relevant outstanding Term Loans and Revolving Loans (with a extent accompanied by permanent reduction of the relevant Revolving Credit Commitments) in accordance with commitment reductions); provided that prepayment shall only be required pursuant to this Section 1.9 until paid in full2.06(b)(iii) for any Fiscal Year if the amount calculated pursuant to clause (A) above exceeds $10,000,000 (and then only to the extent of such excess).
(iv) At If on any date, as a result of fluctuations in exchange rates (which shall be calculated by the end Administrative Agent on each Revaluation Date) or otherwise, the Administrative Agent notifies ▇▇▇▇ that, (A) the sum of (x) the aggregate principal amount of the Revolving Credit Advances, Unreimbursed Amounts, the Letter of Credit Advances and the Swing Line Advances then outstanding plus (y) the aggregate Available Amount of all Letters of Credit then outstanding (in each case determined by the Equivalent thereof in Dollars in the case of any Business Day from and after the Second Amendment Effective Date until the end Advance or Letter of Credit denominated in a Committed Currency) exceeds (B) 105% of the Basket Suspension Period, if Holdingsaggregate Revolving Credit Commitments on such date, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000Revolving Credit Borrowers shall, then the Borrower shall promptly (as soon as practicable and in any event within two three Business Days after receipt of such notice, prepay (2with no corresponding commitment reduction) an aggregate principal amount of the Revolving Credit Advances comprising part of the same Borrowings, Unreimbursed Amounts, the Letter of Credit Advances and the Swing Line Advances (and/or deposit cash collateral in respect of Letters of Credit then outstanding) in an amount sufficient to reduce such sum to an amount not to exceed 100% of the aggregate Revolving Credit Commitments on such date.
(v) The Revolving Credit Borrowers shall, on each Business DaysDay, pay to the Administrative Agent for deposit in the L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such L/C Cash Collateral Account to equal the amount by which the aggregate Available Amount of all Letters of Credit (determined by the Equivalent thereof in Dollars in the case of any Letter of Credit denominated in a Committed Currency) apply then outstanding exceeds the Letter of Credit Sublimit on such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving LoansBusiness Day.
Appears in 1 contract
Mandatory. (i) If the Borrower any Credit Party or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $250,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then the (x) Borrower Representative 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 such Credit Party or any Restricted such Subsidiary in respect thereof) and, and (y) promptly (and in any event within five two (52) Business Days after Days) upon receipt by any Credit Party or the receipt Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in Borrower Representative’s notice within such assets or one hundred eighty (B180) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofday period. Promptly after the end of such 12-month or 18-month one hundred eighty (180) day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the Borrower such Credit Party or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsBorrower Representative’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Draw Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull (applied on a pro rata basis to the remaining principal amortization payments thereof), second to the outstanding Incremental Term Loans (if any) until paid in full (applied on a pro rata basis to the remaining principal amortization payments thereof) and, then to (in the order determined by Agent) the Revolving Loans, Swing Loans and the Reimbursement Obligations.
(ii) If after the Second Restatement Closing Date the Borrower Date, any Credit Party or any Restricted Subsidiary shall issue incur or incur assume any Indebtedness for Borrowed Money, (other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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)6.11 hereof), the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrenceassumption to be received by or for the account of such Credit Party or such Subsidiary in respect thereof. Within five Promptly (5and in any event within two (2) Business Days after Days) upon receipt thereof, 100% by such Credit Party or such Subsidiary of Net Cash Proceeds of such incurrence or assumption Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Draw Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull (applied on a pro rata basis to the remaining principal amortization payments thereof), second to the outstanding Incremental Term Loans (if any) until paid in full (applied on a pro rata basis to the remaining principal amortization payments thereof) and, then to (in the order determined by Agent) the Revolving Loans, Swing Loans and Reimbursement Obligations. The Borrower Each Credit Party acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full[Reserved].
(iv) At Borrowers shall, (A) on each date the end Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay first (in the order determined, without the necessity of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdingsdemand by Agent), the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000Revolving Loans, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, Reimbursement Obligations and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the amount of the aggregate Revolving Credit Exposures of all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Revolving Credit Commitments have been so reduced and second(B) on each date the aggregate amount of Revolving Credit Exposures of all Lenders then outstanding exceeds the lesser of (x) the Leverage Limit (as determined based on the most recent Compliance Certificate) minus the L/C Obligations and (y) the total Revolving Credit Commitments, to prepay outstanding first (in the order determined by Agent), the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, prefund the L/C Obligations in an amount equal to such excess.
(v) [Reserved].
(vi) Unless Borrower Representative otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans and Daily Floating LIBOR Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 7.4.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Addus HomeCare Corp)
Mandatory. (i) If Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition of its Subsidiaries (other than a Sale/Leaseback Transaction with any Excluded Joint Venture) in respect of its property or assets in excess of either (A) $2,500,000 for any one event or series of related events or (B) $5,000,000 in the aggregate during any fiscal year (without regard to a Principal Owned Property which the size of any one event or series of related events pursuant to (A) above), the Borrower shall be prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds in excess thereof received therefrom within five Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to subsection the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the assets or property in respect of which the Extraordinary Receipt was received, it shall suffer an Event deliver written notice of Losssuch intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Net Cash Proceeds, then (B) if the Borrower shall promptly notify have delivered such notice, the Administrative Agent of such Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to thereof may be received by the Borrower or any Restricted Subsidiary in respect thereof) and, reinvested within five (5) Business Days 12 months after the receipt of such Net Cash ProceedsProceeds (provided that if such reinvestment is not completed within 12 months after such date of receipt but the Borrower shall have entered into a binding commitment to so reinvest, the Borrower shall have an additional six months to complete such reinvestment or prepay Loans) and (C) within 10 days of the date the Borrower consummates such reinvestment or restoration, repair or replacement or purchase, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments shall be required under this Section 2.05(b)(i); provided further that any Net Cash Proceeds not so reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(ii) If the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) Disposes of any property (other than any Disposition of any property permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇)(▇), (▇), (▇), (▇), (▇), (▇), (▇) or (k)) which results in the realization by such Person of Net Cash Proceeds in excess of either (A) $2,500,000 for any Disposition or series of related Dispositions or (B) $5,000,000 in the aggregate during any fiscal year (without regard to the size of any one Disposition or series of related Dispositions pursuant to (A) above), the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess thereof received therefrom within five Business Days after the amount date of all receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in assets used or useful in the business, it shall deliver written notice of such intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Net Cash Proceeds; provided that this subsection , (B) if the Borrower shall not require any have delivered such prepayment with respect to notice, the Net Cash Proceeds thereof may be reinvested within 12 months after the receipt of such Net Cash Proceeds (xprovided that if such reinvestment is not completed within 12 months after such date of receipt but the Borrower shall have entered into a binding commitment to so reinvest, the Borrower shall have an additional 6 months to complete such reinvestment or prepay Loans) received on account of Dispositions during any Fiscal Year and (C) within 10 days of the date the Borrower consummates such reinvestment, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as a result, no mandatory prepayments shall be required under this Section 2.05(b)(ii); provided further that any Net Cash Proceeds not exceeding $2,500,000 so reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(iii) Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied ratably to the Term A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof in direct order of maturity.
(iv) [Reserved].
(v) Notwithstanding the provisions of Section 2.05(b)(i) or (b)(ii), if any mandatory prepayments under Section 2.05(b)(i) or (b)(ii) would result in the aggregate or received on account of Events of Loss during Borrower incurring any Fiscal Year obligation (as determined in the reasonable judgment of the Borrower not exceeding $2,500,000 in the aggregate and (yBorrower) other than during the Basket Suspension Period, in the case under Section 3.05 as a result of any Disposition or Event such mandatory prepayment of Loss not covered by clause (x) aboveEurodollar Rate Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, if the Borrower may defer the making of such mandatory prepayment until the earlier of (A) actually reinvests the last day of 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 are actually reinvested in such assets or Interest Period and (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly date thirty days after the end of date on which such 12-month or 18-month periodmandatory prepayment would otherwise have been required to be made; provided that if any Base Rate Loans are then outstanding, 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 made of such Base Rate Loans within the timeframes provided in Sections 2.05(b)(i) and (b)(ii) and any excess shall then be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) as provided in accordance with this Section 1.9 until paid in full2.05(b)(v).
(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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (AdvanSix Inc.)
Mandatory. (i) If the The Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject required to subsection prepay all or a portion of the Loans and/or reduce the Commitments, in each case as provided in clause (iiiii) below:
(A) or shall suffer an Event of Loss, then the 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 unless otherwise agreed by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash ProceedsMajority Lenders, the Borrower shall prepay firstthe Loans in full and terminate the Commitments upon the occurrence of a Change of Control after the Financial Closing Date;
(B) unless otherwise agreed by the Lenders, within three (3) Business Days after any date on which any Operating Company Group Member receives Net Cash Proceeds of any Casualty Event occurring after the relevant Term Loans, and second, Financial Closing Date to the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all extent that such Net Cash ProceedsProceeds exceed $5,000,000 individually or in the aggregate in any fiscal year; provided that this subsection the foregoing shall not require any such prepayment with respect apply (1) to proceeds under business interruption insurance, (2) to the Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year Casualty Event required to be applied otherwise under the terms and conditions of Existing Indebtedness, the Borrower not exceeding $2,500,000 in the aggregate Operating Company Facilities or received on account of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate and (y) other than during the Basket Suspension PeriodPermitted Refinancing Indebtedness or, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Event of Default has occurred and is continuing, if the Borrower (A) actually reinvests such Net Cash ProceedsProceeds received by the Borrower or its Subsidiaries, within 12 months applicable Law, (3) to the extent that (I) the Borrower advises the Facility Agent at the time of the receipt thereofof the relevant Net Cash Proceeds that it intends to use such Net Cash Proceeds to repair or replace the Property subject to such Casualty Event or to reinvest in Utility Capital Expenditures, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, to the extent (II) such Net Cash Proceeds are actually reinvested held by the Borrower or the applicable Operating Company Subsidiary in a segregated investment or other account until so used to repair or replace such Property or invest in such assets Utility Capital Expenditures and (III) such Net Cash Proceeds are committed to be applied to repair or replace such Property (Bor invest in Utility Capital Expenditures) states in a notice delivered within 12 months one hundred and eighty (180) days of the receipt of such Net Cash ProceedsProceeds (it being understood that, that in the event Net Cash Proceeds from more than one Casualty Event are held by the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Restricted Operating Company Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be deemed to be utilized in the same order in which such Net Cash Proceeds were so received and, accordingly, any such Net Cash Proceeds not so committed to be applied within one hundred and eighty (180) days of receipt or not so applied within twelve (12) months of receipt shall be forthwith applied to the prepayment of Loans as provided above), (4) with respect to Net Cash Proceeds which the CFO certifies are being paid to the Borrower or the applicable Operating Company Group Member to reimburse the Borrower or Operating Company Group Member (as applicable) for expenditures previously incurred to repair or replace the Property which was the subject of such Casualty Event, (5) to the extent that a Dividend Prohibition applies with respect to the applicable Operating Company Subsidiary, except that if and to the extent that such Dividend Prohibition subsequently ceases to apply the prepayment otherwise required by this clause (B) shall be reinstated, or (6) to the extent that such prepayment would reasonably be likely to have an adverse impact on (I) any of the Borrower’s regulatory 38 Puget Opco Credit Agreement approvals (or any applications for or renewals thereof), (II) the Borrower’s standing with any applicable regulatory agency, (III) the ability of the Borrower to prepay achieve debt to equity ratios consistent with those of similarly situated companies in the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction conduct of the relevant Revolving Credit CommitmentsBorrower’s business, or (IV) 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 rating of any of the Lenders for any breach of Section 8.7 Borrower’s indebtedness or any other terms the ability of the Loan DocumentsBorrower to obtain credit in the ordinary course of its business.
(iiiI) If the Borrower or any Restricted Subsidiary The Liquidity Letter of Credit Sublimit shall at any time or be permanently reduced from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell on the Equity Interests issued date of each reduction in the Liquidity Facility by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned amount, if any, by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during which the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when amount of the Total Leverage Ratio on a Pro-Forma Basis Liquidity Letter of Credit Sublimit exceeds the Liquidity Facility after giving effect to such Prepayment Sale/Leaseback Transaction and the application reduction of the Net Cash Proceeds thereof as Liquidity Facility; and (II) The Energy Hedging Letter of the last day of the most recently ended fiscal quarter for which financial statements are available Credit Sublimit shall be permanently reduced from time to time on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00of each reduction in the Energy Hedging Facility by the amount, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including if any, by which the amount of the estimated Net Cash Proceeds Energy Hedging Letter of Credit Sublimit exceeds the Energy Hedging Facility after giving effect to be received by such reduction of the Borrower Energy Hedging Facility.
(ii) (A) In the case of any required prepayment or any Restricted Subsidiary in respect thereofreduction of the Facilities pursuant to Section 2.03(b)(i) and, within five (5) Business Days on or after the Financial Closing Date the applicable amount determined pursuant to Section 2.03(b)(i) shall be applied on the date of receipt of such with respect to Net Cash Proceeds, the Borrower applicable Quarter End Date or such other date specified in Section 2.03(b)(i) and shall prepay be applied first, ratably to the relevant Term LoansUnreimbursed Letter of Credit Amounts, and second, ratably to prepay the relevant Revolving Loans, together with outstanding Loans and reduce the Commitments in a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assetscorresponding amount, and, third, to Cash Collateralize the extent such Net remaining LC Exposure. Upon the drawing of any Letter of Credit that has been Cash Proceeds have not been so reinvestedCollateralized, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net funds held as Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment Collateral shall be applied (without any further action by or notice to or from the Borrower) to reimburse the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of Issuing Bank or the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension PeriodLenders, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.as applicable; and
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (xyx) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (yzy) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xyx) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) If the Borrower any Credit Party or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $250,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then the (x) Borrower Representative 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 such Credit Party or any Restricted such Subsidiary in respect thereof) and, and (y) promptly (and in any event within five (5) Business Days after Days) upon receipt by any Credit Party or the receipt Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested in such assets or (By) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest be invested or reinvested, in each case as described in Borrower Representative’s notice with such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the Borrower such Credit Party or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsBorrower Representative’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans until paid in full (with applied on a permanent pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction of the relevant in Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Third Restatement Closing Date the Borrower any Credit Party or any Restricted 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 Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness for Borrowed Money, (other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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)6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds assumption to be received by or for the Borrower account of such Credit Party or any Restricted such Subsidiary in respect thereof) and, . Promptly (and in any event within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply upon receipt by such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.Credit Party or such Subsidiary of
Appears in 1 contract
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.11, prepay the Swingline Loans, 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 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 the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect Disposition permitted pursuant to a Principal Owned Property which shall be subject to subsection (iii) belowSection 8.10 hereof) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 10,000,000 in the aggregate or received on account of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate so long as no Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180‑day period. Promptly after the end of such 12-month or 18-month 180‑day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 the relevant outstanding Term Loans and Revolving Loans (with Facility, but without a permanent reduction of the relevant Revolving Credit Commitments. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in accordance with this Section 1.9 until paid in fullthe Collateral Account. So long as no 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.
(iiiii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))Excluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby 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 Proceeds. The amount of each such prepayment shall be applied to the Revolving Facility, but without a reduction of the Revolving Credit Commitments. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of the Loan Documents.
(iv) If after the Closing Date the Borrower or any Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7, 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 to or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant Term Loans and Obligations in an aggregate amount equal to 100% of the relevant amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied to the Revolving Loans (with Facility, but without a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iiiv) If Unless the Borrower or otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any Restricted Subsidiary balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall at any time or from time be made by the payment of the principal amount to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)be prepaid and, in either the case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on any Eurodollar Loans or prior Swingline Loans, accrued interest thereon to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, prepayment together with a commensurate permanent reduction any amounts due the Lenders under Section 4.5. Each prefunding of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment SaleL/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment C Obligations shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) made in accordance with this Section 1.9 until paid in full9.4.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (xy) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) 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 used or useful in the same or similar function for business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same used or similar function useful in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 1.18, 1.19 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)1.20), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly Within 130 days after the end of such nine-month period, each Fiscal Year of the Borrower (commencing with Fiscal Year 2015) the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or in accordance with this Section 1.9(b) until paid in full by an amount equal to the applicable ECF Prepayment Percentage of Excess Cash Flow of the Borrower and its Subsidiaries for the then most recently completed Fiscal Year of the Borrower less (a) at the option of the Borrower, the aggregate amount of any voluntary prepayments of any Term Loans made prior to the date of such prepayment (to the extent such prepayments are not financed with long-term indebtedness (other than Revolving Loans or other revolving indebtedness)) and (b) at the option of the Borrower, the aggregate amount of any voluntary prepayments of the Revolving Loans made prior to the date of such prepayment to the extent (x) such prepayments are accompanied by a concurrent permanent reduction of Revolving Credit Commitments in the amount of such Net prepayment and (y) such prepayments are not financed with long-term indebtedness (other than Revolving Loans or other revolving indebtedness); provided, that in the case of each of clauses (a) and (b), such amounts shall in no event be deducted from more than one Excess Cash Proceeds received from Flow calculation; provided, that no prepayments shall be required pursuant to this Section 1.9(b)(iii) with respect to any Fiscal Year unless, and to the applicable Prepayment Sale/Leaseback Transaction. The extent, the amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullexceeds $5,000,000.
(iv) At The Borrower shall, on each date any Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the end of any Business Day from and after Revolving Loans, Swing Loans, and, if necessary, pre-fund the Second Amendment Effective Date until L/C Obligations (or make other arrangements reasonably satisfactory to the end L/C Issuer) by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondU.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.
(v) Unless the Borrower otherwise directs, prepayments of Loans of any type under this Section 1.9(b) shall be applied first to prepay outstanding 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.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be in excess of the Revolving Credit Commitments of such Class in effect at such time, 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 Revolving Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Fiscal Year, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsAsset Disposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Asset Disposition and Event of Loss, if the Borrower states in such notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereoftwelve (12) month period. Promptly after the end of such twelve (12-month or 18-) month period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above 1,000,000 not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Incremental Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Term Loans and Incremental Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in 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 Restatement Effective Date the Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than that permitted by Section 7.1 (other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 Class7.1(m)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and Incremental Term Loans, if any, until paid in full (such payments being applied to the relevant remaining amortization payments on the Term Loans and Incremental Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, and then to the Swing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 7.1 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower On or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcobefore April 30th of each year, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)beginning April 30, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2019, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then‑outstanding Loans by an aggregate amount equal to 10050% of the amount Excess Cash Flow of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests on a Consolidated basis for the most recently completed Fiscal Year; provided that, no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such Net Cash Proceeds, within nine months recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the two consecutive fiscal quarters of the Borrower shall notify immediately preceding the date such Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrower has delivered to the Administrative Agent whether the Borrower compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or a Restricted Subsidiary Event of Default has so 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 or Revolving Loans in the amount occurred and is continuing on April 30th of such Net year when the Excess Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionFlow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Incremental Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Term Loans and Incremental Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, and then to the Swing Loans.
(iv) At The Borrower shall, on each date (A) the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Second Amendment Effective Date until Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4, Cash Collateralize the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if HoldingsSwing Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced, and (B) a Permitted Refinancing occurs, prepay the applicable Loans subject to such Permitted Refinancing;
(v) Notwithstanding the foregoing provisions of this Section 2.8(b), (A) any Lender may waive, by written notice to the Borrower and the Administrative Agent on or before the date on which such mandatory prepayment would otherwise be required to be made hereunder, the right to receive its amount of such mandatory prepayment of the applicable Loans being prepaid, (B) if any Lender or Lenders elect to waive the right to receive their Restricted Subsidiaries hold Unrestricted cash amount of such mandatory prepayment pursuant to the foregoing clause (A), the total amount that otherwise would have been applied to mandatorily prepay such applicable Loans of such Lender or Lenders shall be applied to prepay the applicable Loans being repaid of the remaining non‑waiving Lender or Lenders holding such Loans on a pro rata basis, based on the respective principal amounts of their outstanding Loans being repaid, and Cash Equivalents in excess of $100,000,000(C) subject to the Intercreditor Agreement, then to the extent there are any prepayment amounts remaining after the foregoing application, such amounts shall be distributed to the Second Lien Administrative Agent (or its designated sub-agent) for application to the Second Lien Term Loans as permitted by the Intercreditor Agreement, and to the extent there are any prepayment amounts remaining thereafter, such amounts may be retained by the Borrower.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall promptly (and be applied first to Borrowings of Base Rate Loans until payment in full thereof with any event within two (2balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) Business Days) apply such amounts shall be made by the payment of the principal amount to be prepaid and, in excess the case of $100,000,000 first, to prepay outstanding Swing any Term Loans, and secondIncremental Term Loans, if any, Swing Loans or Eurodollar Loans, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 9.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.
Appears in 1 contract
Sources: First Lien Credit Agreement (Turning Point Brands, Inc.)
Mandatory. (i) [reserved].
(ii) (A) If (x) the Borrower or any Restricted Subsidiary shall at Disposes of any time property or from time assets pursuant to time make Section 7.05(f) or (j) (or in a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) belownot permitted by this Agreement) or shall suffer an (y) any Casualty Event of Lossoccurs, then which results in the Borrower shall promptly notify the Administrative Agent of such Disposition realization or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received receipt by the Borrower or any such Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, on or prior to the relevant Term Loans, and second, date which is ten (10) Business Days after the relevant Revolving Loans, together with a commensurate permanent reduction date of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate realization or received on account of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate and (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, subject to clause (b)(vi) of this Section 2.05, an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds realized or received; provided that if at the time that any such prepayment would be required, the Borrower or a any Restricted Subsidiary has committed is required to reinvest repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness (other than revolving Indebtedness) that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing or evidencing such Indebtedness with the net proceeds of such Disposition or Casualty Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds in assets that perform on a pro rata basis (determined on the same or similar function in the business basis of the Borrower or a Restricted Subsidiary, to aggregate outstanding principal amount of the extent Term Loans and Other Applicable Indebtedness at such time; provided that the portion of 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, allocated to the extent such Net Cash Proceeds have Other Applicable Indebtedness shall not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in exceed 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 required to be applied allocated to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of Other Applicable Indebtedness pursuant to the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt terms thereof, 100% and the remaining amount, if any, of such Net Cash Proceeds shall be applied by allocated to the Borrower Term Loans in accordance with the terms hereof) to prepay the relevant prepayment of the Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00repurchase, the Borrower shall promptly notify the Administrative Agent redemption or prepayment of such Prepayment Sale/Leaseback Transaction (including Other Applicable Indebtedness, and the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction prepayment of the relevant Revolving Credit Commitments, in an aggregate amount equal Term Loans that would have otherwise been required pursuant to 100% of the amount of all such Net Cash Proceedsthis Section 2.05(b)(ii)(A) shall be reduced accordingly; provided, further, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, to the extent the holders of Other Applicable Indebtedness decline to have such Net Cash Proceeds have not been so reinvestedindebtedness repurchased, redeemed or prepaid, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the declined amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two ten (210) Business DaysDays after the date of such rejection) apply such amounts in excess of $100,000,000 first, be applied to prepay outstanding Swing Loansthe Term Loans in accordance with the terms hereof; provided, and secondfurther, that no prepayment shall be required pursuant to prepay outstanding Revolving Loansthis Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to the applicable date that prepayment of Term Loans would have otherwise been required pursuant to this Section 2.05(b)(ii)(A), given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B).
Appears in 1 contract
Sources: Credit Agreement (Solo Brands, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the Borrower; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in assets used or useful in the business, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofone hundred eighty (180) day period. Promptly after the end of such 12-month or 18-month one hundred eighty (180) day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrower not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) ). If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in accordance with this Section 1.9 until paid in fullthe 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 Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans until paid in full, and then to the relevant Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) 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 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrowers shall immediately upon notice (and, in any event, within one (1) Business Day of such notice) 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 until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iv) If after the Closing Date the Borrower or any Restricted Subsidiary shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionProceeds. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) Within 120 days after the end of each fiscal year, the Borrower shall prepay the then-outstanding Loans by an amount equal to the Applicable ECF Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower, minus the sum of (1) all voluntary prepayments of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all voluntary prepayments of Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (1) and (2), (x) to the extent such prepayments are funded with internally generated cash and (y) excluding any such voluntary prepayments made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section 2.8(b)(v) in the prior fiscal year, and (3) all mandatory prepayments made pursuant to Section 2.8(b)(ix).
(vi) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, in accordance with this Section 1.9 until paid in full4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ivvii) At Upon the end occurrence of a Change of Control, concurrently with the closing of any Business Day from and after such transaction, at the Second Amendment Effective Date until the end election of the Basket Suspension Period, if HoldingsAdministrative Agent and the Required Lenders, the Borrower shall (A) repay the Loans in full by payment of the outstanding principal of and the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (B) Cash Collateralize 105% of the then outstanding amount of all L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Prime Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in excess the case of $100,000,000any Term Loans or Eurodollar Loans, then accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
(ix) Upon the Borrower or any Subsidiary’s receipt of Net Claim Proceeds from the Legacy Claims, the Borrower shall promptly (and prepay any then-outstanding Term Loan Obligations by an amount equal to the Net Claim Proceeds received from such Legacy Claim; provided, however, in any no event within two (2will the prepayments under this Section 2.8(b)(ix) Business Dayswhen combined with prepayments under Section 2.8(b)(v) apply such amounts exceed $6,000,000 in excess the aggregate during the term of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansthis Agreement.
Appears in 1 contract
Mandatory. (i) If for any reason the Borrower or any Restricted Subsidiary shall Total Outstandings at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Lossexceed the Aggregate Commitments then in effect, then the Borrower shall promptly notify immediately after the earlier of (i) the Borrower’s receipt of written notice from the Administrative Agent thereof or (ii) the date any Responsible Officer of the Borrower has actual knowledge thereof, prepay 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 Loans the Total Outstandings exceed the Aggregate Commitments then in effect.
(ii) If any Loan Party receives any Debt Incurrence Proceeds, the Borrower shall immediately after the receipt of such Disposition or Event of Loss (including Debt Incurrence Proceeds, prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to the amount of such Debt Incurrence Proceeds. The provisions of this Section do not constitute consent to the estimated Net Cash Proceeds to be received issuance or incurrence of any Indebtedness by the Borrower or any of its Restricted Subsidiary Subsidiaries not otherwise permitted hereunder.
(iii) If any Loan Party receives any Net Cash Proceeds from the Disposition of Equity Interests in respect thereof) andEnLink MLP or EnLink Holdings, within five (5) Business Days the Borrower shall immediately after the receipt of such Net Cash Proceeds, prepay Loans and/or, unless the Borrower shall prepay firstconditions specified in Section 4.02 are satisfied and would be satisfied after giving effect to such transactions, Cash Collateralize the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds.
(iv) If any Loan Party completes a Disposition to EnLink MLP in respect of which it receives 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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))50,000,000, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days immediately after the receipt of such Net Cash Proceeds, prepay Loans and/or, unless the Borrower shall prepay firstconditions specified in Section 4.02 are satisfied and would be satisfied after giving effect to such transactions, Cash Collateralize the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullProceeds.
(v) Notwithstanding anything to the contrary herein, the Aggregate Commitments shall not be reduced by any mandatory prepayments required by this Section 2.05(b). For the avoidance of doubt, any Net Cash Proceeds remaining after making any prepayment or Cash Collateralization required by Section 2.05(b)(iii) or (iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, may be retained by the Borrower and their its Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in used for any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loanspurpose not prohibited by this Agreement.
Appears in 1 contract
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) If the Borrower or any Restricted Subsidiary shall at any time or from time 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 time apply the Net Proceeds of such Asset Sale, and, in the event that the Borrower elects to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) voluntary prepayment, repurchase, redemption or shall suffer an Event retirement of Loss, then the Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the amount any of the estimated Net Cash Proceeds to be received by the Borrower or Senior Debt Securities with any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, then, at the request of the Required Lenders, the Borrower shall simultaneously pay or prepay firstthe outstanding Advances, the relevant Term Loansif any, and second, reduce the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of specified by the Required Lenders, such Net Cash Proceeds amount in excess any event not to exceed the amount equal to the percentage of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment shall Net Proceeds applied or to be applied to such voluntary prepayment, repurchase, redemption or retirement of Senior Debt Securities obtained by dividing (1) the relevant then current Aggregate Commitment by (2) the sum of (x) the aggregate then outstanding Term Loans and Revolving Loans principal amount of all Senior Debt Securities plus (with a permanent reduction of y) the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.then current Aggregate Commitment; and
(ii) If after the Closing Date if the Borrower shall not previously have made any payment or any Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 prepayment of the Advances with the Net Proceeds of such Asset Sale pursuant to the terms of clause (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))i) above, the Borrower shall 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, simultaneously with the purchase of any Senior Debt Securities pursuant to the Senior Indenture, 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 of such Asset 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; and The Administrative Agent hereby agrees to promptly notify each of the Lenders of receipt by the Administrative Agent of any notice from the estimated Net Cash Proceeds of such issuance or incurrenceBorrower pursuant to this Section 2.6(b). Within five -27- (5141) Business Days after receipt thereof, 100% of such Net Cash Proceeds Payments and prepayments pursuant to this Section 2.6(b) shall be applied by the Borrower applied, first to prepay the relevant Term Loans Base Rate Advances and the relevant Revolving Loans (with a permanent reduction then to Eurodollar Rate Advances in direct order of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan DocumentsInterest Period maturities.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Dimon Inc)
Mandatory. (i) If If, on any Business Day, the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition aggregate Credit Exposures of all Lenders exceeds the Aggregate Commitment (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss“Excess”), then the applicable 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 respect thereof) andshall, within five (5) two Business Days after the earlier of (A) the Parent’s receipt of written notice of an Excess from the Administrative Agent and (B) the date any Responsible Officer of any Borrower has actual knowledge of such Net Cash ProceedsExcess, solely to the Borrower shall prepay extent of such Excess: first, prepay to the relevant Term Swingline Lender the outstanding principal amount of the Swingline Loans, ; and second, prepay to the relevant Administrative Agent, for the ratable account of each of the Lenders, in whole or in part, a principal amount of Revolving Loans comprising part of the same Borrowing(s) selected by the Parent that will eliminate the Excess; provided, that in the event an Excess remains after prepayment in full of all of the Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, applicable Borrower shall deposit Cash Collateral in an aggregate amount equal to 100% of the amount of all such Net remaining Excess into the Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullCollateral Account.
(ii) If In addition and subject to clause (i) above, if, on any Business Day, the aggregate Credit Exposures of all Lenders to the US Borrower exceeds the US Sub-Facility Limit (as calculated in the Compliance Certificate most recently delivered pursuant to this Agreement) (a “US Facility Excess”), then the US Borrower shall, within two Business Days after the Closing Date earlier of (A) 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 (including Indebtedness issued or incurred under Sections 1.16, 1.18 and 1.19 (but excluding Section 1.20 or any Indebtedness incurred as Parent’s receipt of written notice of a Permitted Refinancing of all or a portion of existing Term Loans of any Class)), the Borrower shall promptly notify US Facility Excess from the Administrative Agent and (B) the date any Responsible Officer of any Borrower has actual knowledge of such US Facility Excess, solely to the extent of such US Facility Excess: first, prepay to the Swingline Lender the outstanding principal amount of the estimated Net Cash Proceeds Swingline Loans; and second, prepay to the Administrative Agent, for the ratable account of such issuance each of the Lenders, in whole or incurrence. Within five (5in part, a principal amount of Loans comprising part of the same Borrowing(s) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied selected by the Borrower to prepay Parent that will eliminate the relevant Term Loans and US Facility Excess; provided, that in the relevant Revolving Loans (with event a permanent reduction US Facility Excess remains after prepayment in full of all of the relevant Revolving Credit Commitments) Loans owing by the US Borrower, the US Borrower shall deposit Cash Collateral in accordance with this Section 1.9 until paid in full. The Borrower acknowledges that its performance hereunder shall not limit an amount equal to the rights and remedies of remaining US Facility Excess into the Lenders for any breach of Section 8.7 or any other terms of the Loan DocumentsCash Collateral Account.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with With respect to each Borrowing as to which a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect Use of Proceeds Certificate is required to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”have been delivered under Section 4.02(d), if and to the extent the applicable Borrower has not applied the proceeds of such Borrowing for the purpose that has been specified in either case when such Use of Proceeds Certificate by the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to fifth Business Day following the date such Prepayment Sale/Leaseback Transaction Borrowing is consummated exceeds 2.50 to 1.00made, then on the Borrower shall promptly notify next Business Day the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the applicable Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, such Borrowing in an aggregate principal amount equal to 100% the lesser of (i) such unused proceeds and (ii) the amount necessary to cause the aggregate amount of all such Net Available Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans to be less than or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after equal to $500,000,000.00 at the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullBusiness Day.
(iv) At the end of If a Commitment Increase is effected as permitted under Section 2.02, each applicable Borrower shall prepay any Business Day from and after the Second Amendment Revolving Loans outstanding on such Commitment Increase Effective Date until to the end of extent necessary to keep the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving LoansLoans ratable to reflect the revised Applicable Percentages arising from such Commitment Increase. Any prepayment made by any Borrower in accordance with this clause (c)(iv) may be made with the proceeds of Revolving Loans in connection with the Commitment Increase occurring simultaneously with the prepayment.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Diamond Offshore Drilling, Inc.)
Mandatory. (i) If The Borrower shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time Revolving Credit Commitments are reduced pursuant to time make a Disposition (other than a SaleSection 1.14 hereof, prepay the Revolving Loans and, if necessary, prefund the L/Leaseback Transaction with respect C Obligations by the amount, if any, necessary to a Principal Owned Property which shall be subject reduce the sum of the aggregate principal amount of Revolving Loans and of L/C Obligations then outstanding to subsection (iii) below) or shall suffer an Event of Loss, then the Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the amount of to which the estimated Net Cash Proceeds Revolving Credit Commitments have been so reduced. The Borrower shall, on each date the Bridge Loan Commitment is reduced pursuant to be received Section 1.14 hereof, reduce the outstanding Bridge Loans by the Borrower or any Restricted Subsidiary in respect thereof) andamount, within five (5) Business Days after if any, necessary to reduce the receipt aggregate principal amount of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal Bridge Loans then outstanding to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of which the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Event of Default Bridge Loan Commitment 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullreduced.
(ii) If after the Closing Date date hereof the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur preferred stock or otherwise), the Borrower shall promptly notify the 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 the Net Cash Proceeds of such issuance, the Borrower shall apply 100% of the amount of such Net Cash Proceeds to reduce the outstanding Bridge Loans until paid in full, with any excess to be applied to the Term Loans 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 any of the other terms of this Agreement.
(iii) If after the date hereof the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of the Net Cash Proceeds of such issuance, the Borrower shall apply 100% of the amount of such Net Cash Proceeds shall to reduce the outstanding Bridge Loans until paid in full, with any excess to be applied by to the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 of any of the other terms of the Loan Documentsthis Agreement.
(iiiiv) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into make or agree to make a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, Disposition (other than a Disposition of assets related to the refractive or ambulatory surgical centers business of the Borrower or any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”Subsidiary), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, then the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction proposed Disposition (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after the ). Promptly upon receipt of such Net Cash Proceeds, by the Borrower shall prepay first, or the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction Subsidiary of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, Disposition the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in apply 100% of the amount of such Net Cash Proceeds to reduce the outstanding Bridge Loans until paid in full, with any excess to be applied to the Term Loans 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 8.10 hereof or any other terms of this Agreement.
(v) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition of assets related to the refractive or ambulatory surgical centers business of the Borrower or any Subsidiary, then the Borrower shall promptly notify the Agent of such proposed Disposition (including the amount of the estimated Net Cash Proceeds to be received from by the applicable Prepayment Sale/Leaseback TransactionBorrower or such Subsidiary in respect thereof). Promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of any such Disposition, the Borrower shall apply the Net Cash Proceeds of such Dispositions as follows: first, to reduce the outstanding Bridge Loans until paid in full; second, to the Revolving Loans then outstanding (up to $1,500,000 in the aggregate); and third, to the Term Loans 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 8.10 hereof or any other terms of this Agreement.
(vi) On March 31st of each year, beginning March 31, 2002, the Borrower shall prepay the Bridge Loans and the Term Loans by an amount equal to 75% of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower (it being acknowledged that the Borrower shall not be required to apply or liquidate any Restricted Cash in order to satisfy the foregoing requirement). The amount of each such prepayment shall be applied to reduce the relevant outstanding Bridge Loans until paid in full, with any excess to be applied to the Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ivvii) At Unless the end Borrower otherwise directs, prepayments of Loans under this Section 1.10(b) shall be applied first to Borrowings of Base Rate Loans outstanding under the relevant Credit until payment in full thereof with any Business Day from and after balance applied to Borrowings of Eurodollar Loans outstanding under the Second Amendment Effective Date until relevant Credit in the end order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.10(b) shall be made by the payment of the Basket Suspension Period, if Holdings, principal amount to be prepaid and accrued interest thereon to the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess date of $100,000,000, then prepayment together with any amounts due the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess Lenders under Section 1.13 hereof. No amount of $100,000,000 first, to prepay outstanding Swing Loansthe Term Loans prepaid may be reborrowed, and secondany such prepayment shall be applied to the relevant Term Loans in inverse order of maturity. Any amount of Revolving Loans paid or prepaid before the Revolving Credit Termination Date, and any amount of Bridge Loans paid or prepaid before the Bridge Loan Commitment Termination Date, may be borrowed, repaid, and borrowed again, subject to prepay outstanding Revolving Loansthe terms and conditions of this Agreement (including, without limitation, mandatory reductions of such Commitments provided in Section 1.14 hereof). Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower any Credit Party or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $250,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then the (x) Borrower Representative 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 such Credit Party or any Restricted such Subsidiary in respect thereof) and, and (y) promptly (and in any event within five (5) Business Days after Days) upon receipt by any Credit Party or the receipt Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested in such assets or (By) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest be invested or reinvested, in each case as described in Borrower Representative’s notice with such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the Borrower such Credit Party or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsBorrower Representative’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the relevant outstanding Term Loans and Revolving Loans until paid in full (with applied on a permanent pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction of the relevant in Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Restatement Closing Date the Borrower (x) there shall occur an IPO involving Holdings or any Restricted IPO Issuer or any other Credit Party, or (y) 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 Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness for Borrowed Money, (other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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)6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of such Credit Party or such Subsidiary in respect thereof. Within On the date of receipt of the proceeds of any IPO, or otherwise promptly (and in any event within five (5) Business Days after Days) upon receipt thereofby such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption (other than an IPO) Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to any outstanding Overadvances, then to the Borrower to prepay the relevant outstanding Term Loans and until paid in full (applied on a pro rata basis over the relevant Revolving Loans remaining principal amortization payments thereof), and, then to (with in the order determined by Agent but without a permanent reduction of the relevant in Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullthe Revolving Loans, Swing Loans and Reimbursement Obligations. The Borrower Each Credit Party acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other No later than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the earlier of (a) receipt by Agent of such Net Cash Proceedsthe audited financial statements required by Section 6.1(b) hereof and (b) the due date of the delivery of the audited financial statements required by Section 6.1(b) hereof, beginning with the Borrower fiscal year ending June 30, 2014, Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then-outstanding Loans by an aggregate amount equal to 10050% of Excess Cash Flow of Credit Parties and their Subsidiaries for the amount most recently completed fiscal year of all such Net Cash ProceedsCredit Parties; provided, that this subsection however, that, commencing with the fiscal year ending June 30, 2015, if the Senior Leverage Ratio (iiidetermined as of the last day of such fiscal year and any fiscal year thereafter by reference to the Compliance Certificate delivered together with the financial statements delivered pursuant to Section 6.1(b) for such fiscal year) is less than 1.25:1.00, Borrowers shall not require any be required to make a prepayment of Term Loans or Revolving Loans with the Net Excess Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests Flow for such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionfiscal year. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans 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 (with in the order determined by Agent but without a permanent reduction of the relevant in Revolving Credit Commitments) the Revolving Loans, Swing Loans, Reimbursement Obligations, without any reduction in accordance with 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 1.9 until 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 fullany 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) At Borrowers shall, (A) on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Second Amendment Effective Date until the end of the Basket Suspension PeriodRevolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the amount of the aggregate Revolving Credit Exposures of all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Revolving Credit Commitments have been so reduced and second(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, to prepay outstanding the Revolving Loans, Swing 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 amount equal to such excess.
(v) Borrowers shall pay to the Agent when and as received by Borrowers and as a mandatory prepayment of the Obligations, a sum equal to the Cure Amount determined in accordance with Credit Parties’ exercise of Cure Rights pursuant to and in accordance with Section 7.7 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 full, thereafter against the other Obligations, in such order as the Agent determines.
(vi) Unless Borrower Representative otherwise directs, prepayments of Loans under this Section 2.8(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 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 7.4.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) (A) If (1) any Prepayment Asset Sale occurs or (2) any Casualty Event occurs, which in the Borrower aggregate results in the realization or receipt by any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event Company of LossNet Cash Proceeds, then the Borrower shall promptly notify cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and 2022 Incremental Term B-2 Loans on a pro rata basis in an amount equal to the Asset Sale Percentage of all Net Cash Proceeds received (the “Applicable Asset Sale Proceeds”); provided that (x) no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 2.06(b)(i)(B) (which election may only be made if no Specified Event of Default has occurred and is then continuing) and (y) if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower, at its election, may apply the Applicable Asset Sale Proceeds on a pro rata basis (determined on the basis of Loss (including the aggregate outstanding principal amount of the estimated Term Loans and Other Applicable Indebtedness at such time) and the remaining Net Cash Proceeds so received to the prepayment of such Other Applicable 90
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be received by incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Initial Term Loans and 2022 Incremental Term B-2 Loans (on a pro rata basis) in an amount equal to 100% of all Net Cash Proceeds received therefrom on or any Restricted Subsidiary in respect thereof) and, within prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a) for the relevant Excess Cash Flow Period, the Borrower shall prepay firstcause to be prepaid an aggregate principal amount of the Initial Term Loans and the 2022 Incremental Term B-2 Loans on a pro rata basis, and any other Term Loans then subject to ratable prepayment requirements in accordance with Section 2.06(b)(iv) in an amount equal to the relevant Excess Cash Flow Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus the sum of (1) the amount of any voluntary prepayments of the Term Loans, Repatriation Bridge Loans and second, any other prepayments of Incremental Equivalent Debt and/or other Indebtedness secured by Liens on the relevant Revolving Loans, together Collateral on a pari passu or senior basis with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of Liens on the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of Collateral securing the Borrower not exceeding $2,500,000 in Initial Term Loans and the 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 (y) other than 2022 Incremental Term B-2 Loans during the Basket Suspension Period, in the case of any Disposition or Event of Loss not Excess Cash Flow Period covered by clause (x) above, so long as no Event of Default has occurred such financial statements 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 12Excess Cash Flow Period and prior to the payment date (including in connection with debt buybacks made by the Borrower in an amount equal to the discounted amount actually paid in respect thereof pursuant to Section 2.06(d), Section 2.07 of the Guaranty Agreement and/or otherwise, and/or the application of yank-month a-bank provisions that result in a reduction of such Loans) and (i) solely to the extent the Revolving Credit Commitments (or 18-month periodrevolving commitments, as applicable) are reduced in connection therewith (and solely to the extent of the amount of such reduction), the amount of any prepayments of the Revolving Credit 91
(iv) Except as otherwise provided in any Incremental Joinder, Refinancing Amendment or Extension Amendment, in each case with respect to the Class or Classes of Term Loans covered thereby, each prepayment of Term Loans pursuant to this Section 2.06(b) shall be applied in a manner as directed by the Borrower among any Class or Classes of Term Loans, and without any such direction, ratably to each Class of the Term Loans (based on the amount of outstanding principal) and in direct order of maturities to the principal repayment installments of the Term Loans that are due after the date of such prepayment; provided that, the Borrower may not direct any mandatory prepayments under one Class or Classes of Term Loans to a later maturing Class or Classes of Term Loans without at least a pro rata repayment of any related earlier maturing Class or Classes.
(v) The Borrower shall notify the Administrative Agent whether in writing of any mandatory prepayment of Initial Term Loans and/or 2022 Incremental Term B-2 Loans required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.06(b) at least (A) in the case of the prepayment of Term Loans which are Base Rate Loans, one Business Day and (j) in the case of prepayments of Term Loans which are Eurocurrency Rate Loans or Term SOFR Loans, three Business Days, in each case prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
(vi) In the event that on any Revaluation Date (after giving effect to the determination of the Total Revolving Outstandings with respect to the applicable Revolving Credit Facility) the Total Revolving Outstandings with respect to such Revolving Credit Facility exceeds an amount equal to 105% of the total Revolving Credit Commitments under such Revolving Credit Facility, the Borrower shall, within two Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Credit Loans or a Restricted Subsidiary has reinvested Swing Line Loans and/or reduce L/C Obligations (in each case, taking the Dollar Equivalent of any amounts in an Alternate Currency), in an aggregate amount sufficient to reduce such Net Cash Proceeds Total Revolving Outstandings as of the date of such payment to an amount not to exceed 100% of the total Revolving Credit Commitment then in effect with respect to such assets, andRevolving Credit Facility by taking any of the following actions as it shall 92
(vii) [Reserved].
(viii) Notwithstanding any other provisions of Section 2.06(b), to the extent such any prepayment otherwise required by the realization or receipt of any or all of the Net Cash Proceeds have not been so reinvestedof any Disposition of property or assets by a Non-U.S. Subsidiary (or any of their Subsidiaries) (a “Foreign Asset Sale”), the Net Cash Proceeds of any Casualty Event realized or received by a Non-U.S. Subsidiary (or any of its Subsidiaries) (a “Foreign Recovery Event”), or Excess Cash Flow attributable to Non-U.S. Subsidiaries (or any of their Subsidiaries) (a “Foreign Cash Sweep”) would result in material and adverse Tax consequences to the Borrower shall promptly prepay firstor its direct or indirect owners or Subsidiaries as reasonably determined by the Borrower or is prohibited or delayed by any applicable Law (including, without limitation, capital maintenance, financial assistance, corporate benefit or other restrictions (including as to lack of distributable reserves) on up streaming of cash intragroup and the relevant Term Loans, fiduciary and second, statutory duties of the relevant Revolving Loans, together with a commensurate permanent reduction management of the relevant Revolving Credit Commitmentsmembers of the relevant Non-U.S. Subsidiary or any of its Subsidiaries giving rise to any risk of personal liability, in including any civil or criminal liability) or other material agreements from being repatriated to or passed on to or used for the amount benefit of the Borrower, the portion of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above or Excess Cash Flow so affected will not so reinvested. The amount of each such prepayment shall be required to be applied to prepay the Initial Term Loans or the 2022 Incremental Term B-2 Loans at the times provided in Section 2.06(b) but may be retained by the applicable Non-U.S. Subsidiary or any of its Subsidiaries so long, but only so long, as such material and adverse Tax consequences would so result or the applicable Law or material agreement will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower, as applicable (the Borrower hereby agreeing to use (or cause the applicable Non-U.S. Subsidiary or its applicable Subsidiary to use) all commercially reasonable efforts for one year to promptly overcome or eliminate any such restrictions on repatriation, passing on or other use for the benefit of the Borrower and/or use the other cash sources of the Borrower and the Restricted Subsidiaries to make the relevant outstanding Term Loans prepayment) and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 once such repatriation of any Class)), the Borrower shall promptly notify the Administrative Agent of the estimated such affected Net Cash Proceeds of or Excess Cash Flow is permitted under the applicable Law, such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of repatriation will be promptly effected and such repatriated Net Cash Proceeds shall or Excess Cash Flow will be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within not later than two Business Days after such repatriation) (2net of additional Taxes payable or reserved against as a result thereof) Business Daysto the prepayment of the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to Section 2.06(b). For the avoidance of doubt, notwithstanding any other provisions of Section 2.06(b) apply , any prepayment required as a result of a Foreign Asset Sale, Foreign Recovery Event or Foreign Cash Sweep (whether or not subject to the other terms of this Section 2.06(b)(viii)) shall be net of additional Taxes payable or reserved against as a result of such prepayment.
(ix) Notwithstanding the foregoing or any other provision in this Agreement, each Term Lender shall have the right to reject its applicable percentage of any repayment or prepayment of the Term Loans pursuant to Section 2.06(b) (each such Lender, a “Rejecting Lender”), in which case the amounts in excess so rejected may be retained by the Borrower (the aggregate amount of $100,000,000 firstsuch proceeds so rejected as of any date of determination, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansthe “Declined Proceeds”).
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $500,000 individually or $1,000,000 on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $500,000 individually or $1,000,000 on a cumulative basis in any fiscal year of the Borrower; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in assets used or useful in the business, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofone hundred eighty (180) day period. Promptly after the end of such 12-month or 18-month one hundred eighty (180) day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $500,000 individually or $1,000,000 on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrower not so invested or reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) ). If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in accordance with this Section 1.9 until paid in fullthe 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 Restatement Effective Date the Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by to the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) 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 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrowers shall immediately upon notice (and, in any event, within one (1) Business Day of such notice) 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 until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iv) If after the Restatement Effective Date the Borrower or any Restricted Subsidiary shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionProceeds. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) [reserved].
(vi) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, in accordance with this Section 1.9 until paid in full4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ivvii) At Upon the end occurrence of a Change of Control, concurrently with the closing of any Business Day from and after such transaction, at the Second Amendment Effective Date until the end election of the Basket Suspension Period, if HoldingsAdministrative Agent and the Required Lenders, the Borrower shall (A) repay the Loans in full by payment of the outstanding principal of and their Restricted Subsidiaries hold Unrestricted cash the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (B) Cash Equivalents in excess Collateralize 105% of $100,000,000, the then outstanding amount of all L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall promptly (and be applied first to Borrowings of Prime Rate Loans until payment in full thereof with any event within two (2balance applied to Borrowings of SOFR Loans. Each prepayment of Loans under this Section 2.8(b) Business Days) apply such amounts shall be made by the payment of the principal amount to be prepaid and, in excess the case of $100,000,000 first, to prepay outstanding Swing any SOFR Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If Subject to the terms of the Senior Subordination Agreement, if the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $110,000 individually or $220,000 on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $110,000 individually or $220,000 on a cumulative basis in any fiscal year of the Borrower; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in assets used or useful in the business, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofone hundred eighty (180) day period. Promptly after the end of such 12-month or 18-month one hundred eighty (180) day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $110,000 individually or $220,000 on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrower not so invested or reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ii) If Subject to the terms of the Senior Subordination Agreement, if after the Closing Date the Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If [Reserved].
(iv) Subject to the terms of the Senior Subordination Agreement, if after the Closing Date the Borrower or any Restricted Subsidiary shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from Proceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) Upon the occurrence of a Change of Control, concurrently with the closing of any such transaction, at the election of the Required Lenders, Borrower shall repay the Loans in full by payment of the outstanding principal balance of the Loans, plus (1) the applicable Prepayment Sale/Leaseback Transaction. The amount Premium, if any, (2) all unpaid interest accrued thereon through the date repayment and (3) all outstanding and unpaid fees and expenses payable to the Lenders under this Agreement and the other Loan Documents through the date of repayment.
(vi) [Reserved].
(vii) Except as otherwise set forth in Section 2.8(b)(v), each such prepayment of Loans under this Section 2.8(b) shall be applied made by the payment of (x) first, the Original Principal to be prepaid and cash interest accrued thereon to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction date of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 prepayment until paid in full.
full and, second, the Deferred Interest Principal and cash interest accrued thereon to the date of prepayment plus (ivy) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Periodapplicable Prepayment Premium, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansany.
Appears in 1 contract
Mandatory. Subject to the ABL Intercreditor Agreement: (i%4) If (%5) if (x) the Borrower or any of its Restricted Subsidiary shall at Subsidiaries consummate any time Asset Sale or from time to time make a (y) any Involuntary Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property occurs, which shall be subject to subsection (iii) below) results in the realization or shall suffer an Event of Loss, then the 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 receipt by the Borrower or any such Restricted Subsidiary of Net Cash Proceeds in respect thereofexcess for all such Dispositions that have occurred subsequent to the immediately prior prepayment pursuant to this Section 2.03(b) and(or, within five (5if there is no such prior prepayment, on or subsequent to the Closing Date) of $40,000,000, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction Proceeds an aggregate principal amount of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.03(b)(i)(A) if, on or prior to such date, the amount Borrower shall have given written notice to the Administrative Agent of its intention to reinvest or cause to be reinvested all or a portion of such Net Cash Proceeds; provided that this subsection shall not require any such prepayment Proceeds in accordance with respect to Net Cash Proceeds Section 2.03(b)(i)(B) (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as which election may only be made if no Event of Default has occurred and is then continuing). (%5) with respect to any Net Cash Proceeds realized or received with respect to any Disposition, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, if the Borrower (A) actually reinvests such Net Cash Proceeds, within 12 months may use all or any portion 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 are actually reinvested in such to acquire, maintain, develop, construct, improve, upgrade or repair assets or useful for its business (Bincluding for making Acquisitions) states in a notice delivered within 12 months (i) 365 days of the receipt of such Net Cash Proceeds, that Proceeds or (ii) if the Borrower or enters into a Restricted Subsidiary has committed legally binding commitment to reinvest use such Net Cash Proceeds in to acquire, maintain, develop, construct, improve, upgrade or repair assets that perform the same or similar function in the useful for its business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly 365 days 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction within 540 days after receipt of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided further that this subsection (iii) shall not require if any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds are not so used within the time period set forth above in this Section 2.03(b)(i)(B) or are no longer intended to be so used at any time after delivery of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end notice of such nine-month periodelection, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested an amount equal to any 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be promptly applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction prepayment of the relevant Revolving Credit Commitments) Loans as set forth in accordance with this Section 1.9 until paid in full2.03.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Polyone Corp)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then the Borrower shall promptly notify the Administrative Agent Bank of such proposed 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 respect thereof) and, within five (5) Business Days after promptly upon receipt by Borrower of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 250,000 in the aggregate so long as no Default or received on account Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if Borrower states in its notice of such event that Borrower intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this subsection in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent Bank whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 Loan until paid in fullfull and then to cash collateralize the Bond L/C. If Bank so request, all proceeds of such Disposition or Event of Loss shall be deposited with Bank (or its agent) and held by it in a collateral account for the benefit of Bank (the “Collateral Account”). So long as no Default or Event of Default exists, Bank is authorized to disburse amounts representing such proceeds from the Collateral Account to or at Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (including Indebtedness equity securities issued to Holdings or incurred under Sections 1.16Parent, 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 Bank of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of Borrower in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby Borrower of Net Cash Proceeds of such issuance, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 Loan until paid in full. The full and then to cash collateralize the Bond L/C. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders Bank for any breach of Section 8.7 6.19 or Section 7.1(c) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date Borrower or shall issue any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property HoldcoIndebtedness, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”)Indebtedness permitted by Section 6.5 hereof, in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the . Promptly upon receipt by Borrower of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 Loan until paid in full.
(iv) At full and then to cash collateralize the end Bond L/C. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Bank for any Business Day from and after the Second Amendment Effective Date until the end breach of Section 6.7 hereof or any other terms of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving LoansLoan Documents.
Appears in 1 contract
Sources: Credit Agreement (Landec Corp \Ca\)
Mandatory. (i) If the any Borrower or any Restricted Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then the Borrower Representative 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 such Borrower or any Restricted Subsidiary such Guarantor in respect thereof) and, within five (5) Business Days after promptly upon receipt by such Borrower or such Guarantor of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate or received on account of Events of Loss during any Fiscal Year fiscal year of the Borrower Parent not exceeding $2,500,000 500,000 (the “Threshold Amount”) in the aggregate so long as no Default or Event of Default then exists, and (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Representative states in its notice of such event that the relevant Borrower or the relevant Guarantor intends to reinvest, within 180360 days of the applicable Disposition or Event of Loss, the Net Cash Proceeds thereof in Property similar to the Property which were subject to such Disposition or other assets useful in such Borrower’s or such Guarantor’s business, then the Borrowers shall not be required to make a mandatory prepayment under this subsection in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such assets similar Property or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested other Property useful in such assets Borrower’s or such Guarantor’s business within 18 months following the receipt thereofsuch 180360-day period. Promptly after the end of such 12180360-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the such Borrower or a Restricted Subsidiary such Guarantor has reinvested such Net Cash Proceeds in such assetssimilar or other useful Property, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds not so reinvested, provided, that if at the end of such 180360-day period such Net Cash Proceeds are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so reinvestedexpended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360540 days following the applicable Disposition or Event of Loss. The amount of each such prepayment shall be applied applied, first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of in the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment). If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 Representative’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property or in any permitted reinvestment.
(ii) If after the Closing Date the any Borrower or any Restricted Subsidiary Guarantor shall issue or incur any Indebtedness for Borrowed MoneyIndebtedness, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))hereof, the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of such Borrower or such Guarantor in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and in the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit. The Borrower acknowledges Borrowers acknowledge that its their 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 Within 100 days after the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction end of each fiscal year of the Parent (commencing with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcofiscal year ending December 31, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”20142015), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect Borrowers shall prepay the Obligations by an amount equal to such (x) the Excess Cash Flow Prepayment Sale/Leaseback Transaction and the application Percentage of Excess Cash Flow of the Net Cash Proceeds thereof as of Parent, the last day of Borrowers and their respective Subsidiaries for the most recently ended completed fiscal quarter for which financial statements are available on or prior year of the Parent minus (y) (i) the aggregate principal amount of Term Loans voluntarily prepaid by the Borrowers pursuant to Section 1.9(a) during such fiscal year, and (ii) the aggregate principal amount of Revolving Loans voluntarily prepaid by the Borrowers (to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received extent accompanied by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate an equivalent permanent reduction of the relevant Revolving Credit CommitmentsCommitment pursuant to Section 1.13(a) hereof) during such fiscal year, in an each case, excluding the aggregate amount equal to 100% of the principal amount of all any such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans voluntary prepayments made with the Net Cash Proceeds proceeds of a Prepayment Sale/Leaseback Transaction incurrences of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionIndebtedness. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of in the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment).
(iv) At The Borrowers shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof or otherwise, prepay the Second Amendment Effective Date until Revolving Loans, Swing Loans, and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if HoldingsSwing Loans, and L/C Obligations then outstanding to the Borrower amount to which the Revolving Credit Commitments have been so reduced.
(v) If at any time the sum of the (i) aggregate Original Dollar Amount of Revolving Loans, (ii) the aggregate Original Dollar Amount of Swing Loans and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents (iii) the aggregate U.S. Dollar Equivalent of all L/C Obligations then outstanding shall be in excess of $100,000,000the Revolving Credit Commitments in effect at such time, then the Borrower Borrowers shall promptly (and but in any event within two one (21) Business DaysDay) apply upon notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Revolving Credit Lenders as a mandatory prepayment of the Obligations, with each such amounts prepayment first to be applied to the Revolving Loans and Swing Loans until paid in excess 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 $100,000,000 firstCredit.
(vi) Unless the Borrower Representative otherwise directs, prepayments made under this Section 1.9(b) in U.S. Dollars shall be applied first to prepay outstanding Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans denominated in U.S. Dollars in the order in which their Interest Periods expire and prepayments made in Alternative Currencies under this Section 1.9(b) shall be applied to Borrowings in such Alternative Currency 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 Eurocurrency Loans or Swing Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe 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 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition of its Subsidiaries (other than a Sale/Leaseback Transaction with any Excluded Joint Venture) in respect of its property or assets, after the first $50,000,000 of Net Cash Proceeds relating to a Principal Owned Property which any Extraordinary Receipts in the aggregate since the Restatement Closing Date, and thereafter any amount in excess of $5,000,000 for any one event or series of related events, the Borrower shall be prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to subsection the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the assets or property in respect of which the Extraordinary Receipt was received, it shall suffer an Event deliver written notice of Losssuch intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Net Cash Proceeds, then (B) if the Borrower shall promptly notify have delivered such notice, the Administrative Agent of such Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to thereof may be received by the Borrower or any Restricted Subsidiary in respect thereof) and, reinvested so long as within five (5) Business Days 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or unreasonably delayed, and is substantially completed within 12 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) and (C) within 10 days of the date the Borrower consummates such restoration, repair or replacement or purchase, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(i); provided further that any Net Cash Proceeds not so reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(ii) If the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) Disposes of any property (other than any Disposition of any property permitted by ▇▇▇▇▇▇▇ ▇.▇▇(▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) or (k)) which results in the realization by such Person of Net Cash Proceeds, after the first $10,000,000 of Net Cash Proceeds relating to any such Dispositions in the aggregate since the Restatement Closing Date, and thereafter any amount in excess of $2,500,000 for any one event of series of related events, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds received therefrom within three Business Days after the amount date of all receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business, it shall deliver written notice of such intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which the Borrower receives such Net Cash Proceeds; provided that this subsection , (B) if the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested so long as within 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have begun and so long as such reinvestment has not require any been terminated, abandoned or unreasonably delayed, and is substantially completed within 12 months after the date of receipt of such prepayment with respect to Net Cash Proceeds (xprovided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) received on account of Dispositions during any Fiscal Year and (C) within 10 days of the date the Borrower consummates such reinvestment, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(ii); provided further that any Net Cash Proceeds not exceeding $2,500,000 so reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05.
(iii) Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied, first, ratably to the Term A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof in direct order of maturity and, thereafter, to the Revolving Credit Facility in the aggregate or received on account manner set forth in clause (iv) of Events of Loss during any Fiscal Year this Section 2.05(b).
(iv) Prepayments of the Borrower not exceeding $2,500,000 Revolving Credit Facility made pursuant to clause (i) or (ii) of this Section 2.05(b), first, shall be applied to prepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in the aggregate and (y) other than during the Basket Suspension Periodfull, second, shall be applied to prepay Swing Line Loans outstanding at such time until all such Swing Line Loans are paid in full, and, third, shall be applied to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clauses (i) or (ii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Loans and L/C Borrowings outstanding at such time, may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Disposition Letter of Credit, which has been Cash Collateralized, such funds shall be applied (without any further action by or Event notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(v) Notwithstanding the provisions of Loss not covered by clause Section 2.05(b)(i) or (xb)(ii), if any mandatory prepayments under Section 2.05(b)(i) aboveor (b)(ii) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Rate Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, if the Borrower may defer the making of such mandatory prepayment until the earlier of (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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to such Interest Period and (B) the date thirty days after the date on which such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds mandatory prepayment would otherwise have been required to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullmade.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If Within ninety (90) days after the end of each Fiscal Year commencing with the Fiscal Year ending December 31, 2008, the Borrower or any Restricted Subsidiary shall at any time or from time prepay an aggregate principal amount of Senior Debt equal to time make a Disposition (other than a Sale/Leaseback Transaction 50% of Excess Cash Flow for such Fiscal Year; provided, however with respect to a Principal Owned Property which Fiscal Year 2008, Excess Cash Flow shall be subject computed for the period commencing with the Commitment Effective Date through the last day of such Fiscal Year; and further provided, however, if the Total Leverage Ratio as of the last day of such Fiscal Year is less than 2.0 to subsection (iii) below) or shall suffer an Event of Loss1.0, then the Borrower shall promptly notify not be required to make a prepayment pursuant to this Section 2.05(b)(i) for such Fiscal Year.
(ii) If any Loan Party or any of its Subsidiaries disposes of any property in connection with an Asset Disposition which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to 100% of such Net Cash Proceeds 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 to 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 Disposition Asset Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or Event such Subsidiary may reinvest all or any portion of Loss (including the amount of the estimated such Net Cash Proceeds to be received by in operating assets performing the Borrower same or any Restricted a similar function or otherwise used in the business of such Loan Party or such Subsidiary in respect thereof) and, so long as within five (5) Business Days 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 as set forth in this Section 2.05(b)(ii) immediately upon the earlier of the occurrence of a Default or the expiration of such 180 day period.
(iii) Upon the 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 Permitted Acquisition) or the exercise by any Person of any convertible Capital Securities issued by a Loan Party (other than the Warrants), the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate principal amount of Senior Debt equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (xsuch prepayments to be applied as set forth in clauses (vii) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (yix) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullbelow).
(iiiv) If after Upon the Closing Date the Borrower incurrence or issuance by any Loan Party or any Restricted Subsidiary shall issue or incur of its Subsidiaries of any Indebtedness for Borrowed Money, Debt (other than Indebtedness for Borrowed Money Debt permitted by Section 8.7 (including Indebtedness issued or incurred under Sections 1.16, 1.18 7.01 (a) – (i) 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 Classk)), the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of the estimated 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 such issuance or incurrence. Within five Net Cash Proceeds from the exercise of any Warrants, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to (5A) Business Days after receipt thereof, 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 greater than 2.50:1.0, (B) 75% 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 2.50:1.0 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 of its Subsidiaries, and not otherwise included in clauses (ii), (iii), (iv) or (v) of this Section 2.05(b), 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); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available Administrative Agent on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of receipt of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be received by the Borrower continuing, such Loan Party or any Restricted such Subsidiary in respect thereof) and, may apply within five (5) Business Days 180 days after the receipt of such Net Cash Proceedscash 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 the extent accepted by the Private Placement Noteholders, prepay the applicable Private Placement Notes so long as at least a Ratable Portion of the 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 amount and applied, first, to the relevant 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 second, L/C Borrowings and/or Cash Collateralize the relevant Revolving Loans, together with a commensurate permanent reduction of L/C Obligations (other than the relevant Revolving Credit Commitments, L/C Borrowings) in an aggregate amount equal to 100% 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 the case of prepayments of the 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 Net time and the Cash Proceeds; providedCollateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, that this subsection (iiicash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if may be retained by the Borrower actually reinvests such Net 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 Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodCollateralized, the Borrower funds held as Cash Collateral shall notify the Administrative Agent whether be applied (without any further action by or notice to or from the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assetsany other Loan Party) to reimburse the L/C Issuer or the Lenders, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullas applicable.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make The Borrowers shall, if a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Dominion Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Event of Default has occurred and is continuing, if on the Borrower (A) actually reinvests such Net Cash Proceeds, within 12 months Business Day following the date of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, to the extent such of any Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower by any Loan Party or any of its Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed MoneySubsidiaries during such Cash Dominion Period, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the an aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount Advances equal to 100% of the amount of all such Net Cash Proceeds; provided, however, that this subsection (iiiA) the Borrowers shall not require be required to make any prepayment of Term Loans or Revolving Loans hereunder with the Net Cash Proceeds unless and until the aggregate amount of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested 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 2.07(b)(i) 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 such assets, andthe case of Net Cash Proceeds that are Extraordinary Receipts in respect of any casualty or condemnation event (“Extraordinary Receipts Proceeds”), to the extent such Net Cash Extraordinary Receipts Proceeds have not been so reinvestedare used to repair, restore or replace the Borrower shall promptly prepay assets that are the relevant Term Loans or Revolving Loans in the amount subject of such Net Cash event in substantially the same location promptly after the receipt of such Extraordinary Receipts Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount by a Loan Party or any of each its Restricted Subsidiaries, no such prepayment Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder, (D) in the relevant outstanding Term Loans 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 Revolving Loans (with a permanent reduction E) in the case of Extraordinary Receipts Proceeds on account of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At claims subject to the end of C▇▇▇▇▇▇ Fire Settlement, no such Extraordinary Receipts Proceeds shall be required to be applied to any Business Day from and after prepayment hereunder to the Second Amendment Effective Date until extent that such Extraordinary Receipts Proceeds shall be used to pay or reimburse the end of the Basket Suspension Period, if Holdings, the Borrower Loan Parties and their Restricted Subsidiaries hold Unrestricted cash for funding the settlement fund described in the definition of “C▇▇▇▇▇▇ Fire Settlement” and/or for legal fees and expenses incurred in connection therewith. Notwithstanding the foregoing, (x) Net Cash Equivalents 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 excess respect of $100,000,000the US Revolving Credit 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 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) (A) The US Borrowers shall, on each Business Day, if applicable, prepay, in each case without any reduction of any Commitments, an aggregate principal amount of the US Revolving Credit Advances, the US Letter of Credit Advances or the Swing Line Advances or deposit an amount in the US L/C Collateral Account in an amount equal to the amount by which (1) the sum of (x) the US Revolving Credit Advances, the US Letter of Credit Advances and the Swing Line Advances then outstanding plus (y) the Borrower shall promptly (and in any event within two aggregate Available Amount of all US Letters of Credit then outstanding exceeds (2) Business Daysthe lesser of (x) apply such amounts in excess the sum of $100,000,000 first, to prepay outstanding Swing Loans, the aggregate US Revolving Credit Commitments and second, to prepay outstanding Revolving Loans(y) the US Borrowing Base.
Appears in 1 contract
Sources: Senior Secured Revolving Facilities Credit Agreement (Chemtura CORP)
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) If In the Borrower or event of any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 Debt Issuance by the Borrower or any of its Restricted Subsidiary in respect thereof) Subsidiaries on or after the Closing Date, then concurrently with receipt of Net Cash Proceeds of such Debt Issuance, the Borrower shall prepay an aggregate principal amount of the Term Loans and, within five (5) Business Days after if so provided in the receipt 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 Net Cash Proceeds that exceeds $25,000,000 is herein referred to as “Excess Extraordinary Receipts”) the Borrower shall prepay firstan aggregate principal amount of Term Loans and, if so provided in the relevant 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 secondbe continuing, the relevant Revolving 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(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 that exceeds $30,000,000 is herein referred to as “Excess Disposition Net Cash Proceeds”) the Borrower shall prepay an aggregate amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, together with equal to 100% of such Excess Disposition Net Cash Proceeds immediately upon receipt thereof by the Borrower or a commensurate permanent reduction Restricted Subsidiary, provided, however, (x) for so long as no Event of Default shall have occurred and be continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Proceeds in assets used in the business of the relevant Revolving Credit CommitmentsBorrower or its Subsidiaries, and in such case any Excess Disposition Net Cash Proceeds 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 the Term Facility pursuant to Section 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 fiscal year (commencing with fiscal year ending December 31, 2011), the Borrower shall, no later than ninety days after the end of 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 the amount of all such Net Cash Proceedsvoluntary prepayments made during that fiscal year pursuant to Section 2.03(a); provided provided, however, that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 in 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, event that the Borrower 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 Restricted Subsidiary has committed Compliance Certificate provided pursuant to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business Section 6.02(b) as of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceedsyear, the Borrower shall prepay firstthe Term Loans and, if so provided in the relevant Incremental Term Supplement applicable thereto, Incremental Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 25% of such Consolidated Excess Cash Flow less 100% of voluntary prepayments made during that fiscal year pursuant to Section 2.03(a) and (B) in the amount event that the Consolidated Leverage Ratio is less than 2.00 to 1.00, as evidenced by a Compliance Certificate provided pursuant to Section 6.02(b) as of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodfiscal year or upon the written consent of the Required Lenders, no such prepayment shall be required. Notwithstanding anything to the contrary contained within this subsection (iv), the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, not be required to make any payment under this subsection (iv) to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each that such prepayment shall be applied would cause Liquidity to fall below the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullMinimum Liquidity Threshold.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) If the any Borrower or any Restricted Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then the Borrower Representative 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 such Borrower or any Restricted Subsidiary such Guarantor in respect thereof) and, within five (5) Business Days after promptly upon receipt by such Borrower or such Guarantor of the receipt Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate or received on account of Events of Loss during any Fiscal Year fiscal year of the Borrower Parent not exceeding $2,500,000 500,000 (the “Threshold Amount”) in the aggregate so long as no Default or Event of Default then exists, and (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Representative states in its notice of such event that the relevant Borrower or the relevant Guarantor intends to reinvest, within 180 days of the applicable Disposition or Event of Loss, the Net Cash Proceeds thereof in Property similar to the Property which were subject to such Disposition or other assets useful in such Borrower’s or such Guarantor’s business, then the Borrowers shall not be required to make a mandatory prepayment under this subsection in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such assets similar Property or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested other Property useful in such assets Borrower’s or such Guarantor’s business within 18 months following the receipt thereofsuch 180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the such Borrower or a Restricted Subsidiary such Guarantor has reinvested such Net Cash Proceeds in such assetssimilar or other useful Property, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds not so reinvested, provided, that if at the end of such 180-day period such Net Cash Proceeds are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so reinvestedexpended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360 days following the applicable Disposition or Event of Loss. The amount of each such prepayment shall be applied applied, first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of in the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment). If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 Representative’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property or in any permitted reinvestment.
(ii) If after the Closing Date the any Borrower or any Restricted Subsidiary Guarantor shall issue or incur any Indebtedness for Borrowed MoneyIndebtedness, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))hereof, the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of such Borrower or such Guarantor in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and in the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit. The Borrower acknowledges Borrowers acknowledge that its their 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 Within 100 days after the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction end of each fiscal year of the Parent (commencing with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcofiscal year ending December 31, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”2014), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect Borrowers shall prepay the Obligations by an amount equal to such (x) the Excess Cash Flow Prepayment Sale/Leaseback Transaction and the application Percentage of Excess Cash Flow of the Net Cash Proceeds thereof as of Parent, the last day of Borrowers and their respective Subsidiaries for the most recently ended completed fiscal quarter for which financial statements are available on or prior year of the Parent minus (y) (i) the aggregate principal amount of Term Loans voluntarily prepaid by the Borrowers pursuant to Section 1.9(a) during such fiscal year, and (ii) the aggregate principal amount of Revolving Loans voluntarily prepaid by the Borrowers (to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received extent accompanied by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate an equivalent permanent reduction of the relevant Revolving Credit CommitmentsCommitment pursuant to Section 1.13(a) hereof) during such fiscal year, in an each case, excluding the aggregate amount equal to 100% of the principal amount of all any such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans voluntary prepayments made with the Net Cash Proceeds proceeds of a Prepayment Sale/Leaseback Transaction incurrences of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionIndebtedness. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of in the relevant Revolving Credit Commitmentsmanner set forth in Section 1.9(c) in accordance with this Section 1.9 hereof until paid in fullfull and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment).
(iv) At The Borrowers shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof or otherwise, prepay the Second Amendment Effective Date until Revolving Loans, Swing Loans, and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if HoldingsSwing Loans, and L/C Obligations then outstanding to the Borrower amount to which the Revolving Credit Commitments have been so reduced.
(v) If at any time the sum of the (i) aggregate Original Dollar Amount of Revolving Loans, (ii) the aggregate Original Dollar Amount of Swing Loans and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents (iii) the aggregate U.S. Dollar Equivalent of all L/C Obligations then outstanding shall be in excess of $100,000,000the Revolving Credit Commitments in effect at such time, then the Borrower Borrowers shall promptly (and but in any event within two one (21) Business DaysDay) apply upon notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Revolving Credit Lenders as a mandatory prepayment of the Obligations, with each such amounts prepayment first to be applied to the Revolving Loans and Swing Loans until paid in excess 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 $100,000,000 firstCredit.
(vi) Unless the Borrower Representative otherwise directs, prepayments made under this Section 1.9(b) in U.S. Dollars shall be applied first to prepay outstanding Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans denominated in U.S. Dollars in the order in which their Interest Periods expire and prepayments made in Alternative Currencies under this Section 1.9(b) shall be applied to Borrowings in such Alternative Currency 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 Eurocurrency Loans or Swing Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe 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 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $100,000 individually or $200,000 on a cumulative basis in any fiscal year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $100,000 individually or $200,000 on a cumulative basis in any fiscal year of the Borrower; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in assets used or useful in the business, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofone hundred eighty (180) day period. Promptly after the end of such 12-month or 18-month one hundred eighty (180) day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $100,000 individually or $200,000 on a cumulative basis in any fiscal year of the applicable $2,500,000 basket described above Borrower not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and until paid in full, then to the Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) ), and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in accordance with this Section 1.9 until paid in fullthe 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 Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans until paid in full, and then to the relevant Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full), then to the Swing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrowers shall immediately upon notice (and, in any event, within one (1) Business Day of such notice) 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 until payment in full thereof (without a permanent reduction of the Revolving Commitments), then to the Swing Loans 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 Credit.
(iv) If after the Closing Date the Borrower or any Restricted Subsidiary shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionProceeds. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (with without a permanent reduction of the relevant Revolving Credit Commitments) in accordance with ), then to the Swing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Section 1.9 until paid in fullAgreement.
(ivv) At On or before May 1 of each year, beginning May 1, 2018, the Borrower shall prepay the then-outstanding Loans by an amount equal to 50% of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower; provided that, if at any time (A) the Senior Leverage Ratio is less than 2.00:1.00 as of the end of any Business Day from and after the Second Amendment Effective Date until the end two consecutive fiscal quarters of the Basket Suspension Period, if Holdings, Parent and the Borrower has delivered to the Administrative Agent the compliance certificate required by Section 6.1(c) evidencing such computations of the Senior Leverage Ratio and their Restricted Subsidiaries hold Unrestricted cash (B) no Default or Event of Default has occurred and Cash Equivalents in excess of $100,000,000is continuing on such date, then the Borrower shall promptly prepay the then-outstanding Loans by an amount equal to 25% of Excess Cash flow for the duration of this Agreement; provided, further that no Excess Cash Flow payment shall be required under this Section 2.8(b)(v) for the duration of this Agreement to the extent that (A) the Senior Leverage Ratio is less than 1.50:1.00 as of the end of two consecutive fiscal quarters of the Parent and the Borrower has delivered to the Administrative Agent the compliance certificate required by Section 6.1(c) evidencing such computations of the Senior Leverage Ratio and (B) no Default or Event of Default has occurred and is continuing on such dates. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in any event within two full, then to the Revolving Loans until paid in full (2) Business Days) apply such amounts in excess without a permanent reduction of $100,000,000 firstthe Revolving Commitments), and then to prepay outstanding the Swing Loans.
(vi) The Borrower shall, and secondon each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to prepay outstanding 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.
(vii) Upon the occurrence of a Change of Control, concurrently with the closing of any such transaction, at the election of the Administrative Agent and the Required Lenders, the Borrower shall (A) repay the Loans in full by payment of the outstanding principal of and the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (B) Cash Collateralize 105% of the then outstanding amount of all L/C Obligations; provided that in the event the Mezzanine Subordinated Debt is accelerated under Section 2(b)(v) of the Mezzanine Loan Agreement, the Borrower shall immediately and automatically (x) repay the Loans in full by payment of the outstanding principal of and the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (y) Cash Collateralize 105% of the then outstanding amount of all L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(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 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $1,500,000 individually or on a cumulative basis in any Fiscal Year of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds received in connection with such Disposition or such Event of Loss; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant aggregate outstanding Term Loans and Incremental Term Loans, if any, on a combined ratable basis with respect to all such Loans until such Loans are paid in full and then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as 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 Restricted Subsidiary shall issue any new equity securities (other than equity securities issued to any director, manager, or employee as part of an employee incentive program, equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and equity securities the proceeds of which are used in whole or in part to finance an Acquisition) or incur or assume any Indebtedness for Borrowed Money, Debt other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.29, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in the amount of 100% of such Net Cash Proceeds acquired in connection with the incurrence or assumption of Debt and 50% of such Net Cash Proceeds acquired in connection with the issuance of new equity securities. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and Incremental Term Loans, if any, on a combined ratable basis with respect to all such Loans until such Loans are paid in full and then to the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, then to the Swing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 6.29 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time ratio of Consolidated Senior Funded Debt to time enter into a Sale/Leaseback Transaction with respect Consolidated EBITDA for the trailing four Fiscal Quarters is greater than 2.5 to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof 1.0 as of the last day end of any Fiscal Year of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Borrower ending after December 31, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2013, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then-outstanding Loans by an aggregate amount equal to 10050% of Excess Cash Flow of Borrower and its Subsidiaries for such Fiscal Year of the amount Borrower on or before April 1 of all each following Fiscal Year (such Net requirement, the “Excess Cash ProceedsFlow Requirement”); provided, however, that this subsection (iii) the Excess Cash Flow Requirement shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property apply if the Borrower actually reinvests such Net Cash Proceeds, within nine months ratio of Consolidated Senior Funded Debt to Consolidated EBITDA for the receipt thereof, in one or more other Principal Owned Properties. Promptly after trailing four Fiscal Quarters is less than 2.0 to 1.0 as of the end of any Fiscal Quarter, unless, after achieving such nine-month periodlower ratio, the Borrower ratio of Consolidated Senior Funded Debt to Consolidated EBITDA for the trailing four Fiscal Quarters is greater than 2.5 to 1.0 as of the end of any subsequent Fiscal Year of the Borrower, upon which event the Excess Cash Flow Requirement shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionbe reinstated. The amount of each such prepayment shall be applied first to the relevant aggregate outstanding Term Loans and Incremental Term Loans, if any, on a combined ratable basis with respect to all such Loans until such Loans are paid in full and then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Swing Loans.
(iv) At The Borrower shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Second Amendment Effective Date until Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if HoldingsSwing 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, Swing Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrower shall immediately and their Restricted Subsidiaries hold Unrestricted cash without notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and Cash Equivalents for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until payment in excess of $100,000,000full thereof, then to the Swing Loans 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 Credit.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall promptly (and be applied first to Borrowings of Base Rate Loans until payment in full thereof with any event within two (2balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) Business Days) apply such amounts shall be made by the payment of the principal amount to be prepaid and, in excess the case of $100,000,000 first, to prepay outstanding Swing any Term Loans, and secondSwing Loans or Eurodollar Loans, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
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) If the Borrower or any Restricted Subsidiary shall at any time or from time 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 time apply the Net Proceeds of such Asset Sale, and, in the event that the Borrower elects to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) voluntary prepayment, repurchase, redemption or shall suffer an Event retirement of Loss, then the Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the amount any of the estimated Net Cash Proceeds to be received by the Borrower or Senior Debt Securities with any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, then, at the request of the Required Lenders, the Borrower shall simultaneously pay or prepay firstthe outstanding Advances, the relevant Term Loansif any, and second, reduce the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of specified by the Required Lenders, such Net Cash Proceeds amount in excess any event not to exceed the amount equal to the percentage of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment shall Net Proceeds applied or to be applied to such voluntary prepayment, repurchase, redemption or retirement of Senior Debt Securities obtained by dividing (1) the relevant then current Aggregate Commitment by (2) the sum of (x) the aggregate then outstanding Term Loans and Revolving Loans principal amount of all Senior Debt Securities plus (with a permanent reduction of y) the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.then current Aggregate Commitment; and
(ii) If after the Closing Date if the Borrower shall not previously have made any payment or any Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 prepayment of the Advances with the Net Proceeds of such Asset Sale pursuant to the terms of clause (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))i) above, the Borrower shall 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, simultaneously with the purchase of any Senior Debt Securities pursuant to the Senior Indenture, 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 of such Asset 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; and The Administrative Agent hereby agrees to promptly notify each of the Lenders of receipt by the Administrative Agent of any notice from the estimated Net Cash Proceeds of such issuance or incurrenceBorrower pursuant to this Section 2.6(b). Within five (5Payments and prepayments pursuant to this Section 2.6(b) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower applied, first to prepay the relevant Term Loans Base Rate Advances and the relevant Revolving Loans (with a permanent reduction then to Eurodollar Rate Advances in direct order of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan DocumentsInterest Period maturities.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Dimon Inc)
Mandatory. (i) If Subject to clause (vii) below, if the Borrower or any Restricted Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Fiscal Year, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsAsset Disposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Asset Disposition and Event of Loss, if the Borrower states in such notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereoftwelve (12) month period. Promptly after the end of such twelve (12-month or 18-) month period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above 1,000,000 not so invested or reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and Revolving Loans (with a permanent reduction held by it in the Collateral Account. So long as no Default or Event of Default exists, the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAdministrative 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 Subject to clause (vii) below, if after the Closing Restatement Effective Date the Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than that permitted by Section 7.1 (other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 Class7.1(m)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by to the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fulloutstanding Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Administrative Agent or the Lenders for any breach of Section 8.7 7.1 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time Subject to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcoclause (vii) below, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00before April 30th of each year, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) andbeginning April 30, within five (5) Business Days after the receipt of such Net Cash Proceeds2019, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then‑outstanding Loans by an aggregate amount equal to 10050% of the amount Excess Cash Flow of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests on a Consolidated basis for the most recently completed Fiscal Year; provided that, no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such Net Cash Proceeds, within nine months recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the two consecutive fiscal quarters of the Borrower shall notify immediately preceding the date such Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrower has delivered to the Administrative Agent whether the Borrower compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or a Restricted Subsidiary Event of Default has so 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 or Revolving Loans in the amount occurred and is continuing on April 30th of such Net year when the Excess Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionFlow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Turning Point Brands, Inc.)
Mandatory. (iA) If the Immediately upon any voluntary or involuntary (including casualty losses or condemnations) sale or disposition by any Borrower or any Restricted Subsidiary shall at any time its Subsidiaries of property or from time to time make a Disposition assets (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property sales or dispositions which shall be subject to subsection (iii) below) or shall suffer an Event of Lossqualify as Permitted Dispositions), then the such Borrower shall promptly notify the Administrative Agent of such Disposition prepay, without penalty or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceedspremium, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together outstanding Obligations in accordance with a commensurate permanent reduction of the relevant Revolving Credit Commitments, clause (d) below in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (xincluding condemnation awards and payments in lieu thereof) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 by such Person in the aggregate connection with such sales or received on account of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate and (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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, dispositions to the extent such Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the aggregate amount of such Net Cash Proceeds in excess received by Borrowers and its Subsidiaries (and not paid to Agent as a prepayment of the Obligations) for all such sales or dispositions shall exceed $250,000 in any fiscal year; provided, however, that, so long as (1) no Default or Event of Default shall have occurred and is continuing, (2) Administrative Borrower shall have given Agent prior written notice of Borrowers’ and their respective Subsidiaries’ intention to apply such monies to the costs of replacement of the property or assets which are the subject of such sale or disposition or the cost of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries, (3) the monies are held in a cash collateral account in which Agent has a perfected security interest (if requested by Agent, in its sole discretion), and (4) a Borrower or a Subsidiary of a Borrower completes such replacement, purchase or construction within 180 days after the initial receipt of such monies, such Borrower shall have the option to apply such monies to the costs of replacement of the property or assets which are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries unless and to the extent that such applicable $2,500,000 basket described above not so reinvested. The amount of each period shall have expired without such prepayment replacement, purchase or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be paid to Agent and applied as set forth above. Nothing contained in this subclause (A) shall permit any Borrower or its Subsidiaries to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction sell or otherwise dispose of the relevant Revolving Credit Commitments) any property or assets other than in accordance with this Section 1.9 until paid in full6.4.
(iiB) If after Immediately upon the Closing Date the receipt by any 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 (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 its Subsidiaries of any Class))Extraordinary Receipts in any fiscal year, such Borrower shall prepay, without premium or penalty, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five outstanding Obligations in accordance with clause (5d) Business Days after receipt thereof, below in an amount equal to 100% of such Net Cash Proceeds Extraordinary Receipts, net of the amount of any Senior Creditor Indebtedness which is required to be, and is, repaid in connection with such receipt and any reasonable expenses incurred in collecting such Extraordinary Receipts.
(C) Immediately upon the issuance or incurrence by any Borrower or its Subsidiaries of any Indebtedness (other than Indebtedness permitted by Section 6.1), or the issuance by any Borrower or its Subsidiaries of any shares of its or their Stock (other than Excluded Issuances), such Borrower shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction outstanding principal of the relevant Revolving Credit Commitments) Obligations 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 or any other terms of the Loan Documents.
clause (iiid) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionby such Borrower or its Subsidiaries in connection with such issuance or incurrence. The amount provisions of each this subsection (C) shall not be deemed to be implied consent to any such prepayment shall be applied to issuance or incurrence otherwise prohibited by the relevant outstanding Term Loans terms and Revolving Loans (with a permanent reduction conditions of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAgreement.
(ivD) At Immediately upon the end occurrence of any Business Day from and after a Merger Termination Event, the Second Amendment Effective Date until Borrowers shall prepay the end outstanding Obligations plus an additional amount equal to 30% of the Basket Suspension Periodoutstanding principal amount of the Term Loans as of such termination. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, if HoldingsSUCH ADDITIONAL AMOUNT IS NOT A PENALTY, BUT REPRESENTS LIQUIDATED DAMAGES IN CONNECTION WITH OCCURRENCE OF A MERGER TERMINATION EVENT. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY THE LENDERS AS A RESULT OF THE OCCURRENCE OF SUCH MERGER TERMINATION EVENT, AND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH THE LENDERS WILL INCUR AS A RESULT OF SUCH OCCURRENCE, PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT THE LENDERS’ RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES, NOR WAIVE OR AFFECT THE LENDERS’ RIGHT AND THE BORROWERS’ OBLIGATIONS UNDER OTHER SECTIONS OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE MERGER AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE LENDERS. NOTWITHSTANDING THE FOREGOING, IF THE BORROWERS INTERFERE WITH OR MAKE ANY ATTEMPT TO INTERFERE WITH THE LENDERS RECEIVING OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION, THE LENDERS SHALL HAVE THE RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO THE BORROWERS AND THE LENDERS SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST THE BORROWERS PROVIDED AT LAW AND IN EQUITY.
(E) Notwithstanding the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess foregoing provisions of $100,000,000this Section 2.4(c)(ii), then no mandatory prepayments of Obligations shall be required pursuant to Sections 2.4(c)(ii)(A) through (C) until a Discharge of the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving LoansSenior Creditor Indebtedness has occurred.
Appears in 1 contract
Sources: Credit Agreement (Buca Inc /Mn)
Mandatory. (i) If the either Borrower or any Restricted Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Fiscal Year, then (x) the Borrower Borrowers shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the such Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by such Borrower or such Subsidiary of the receipt Net Cash Proceeds of such Net Cash ProceedsAsset Disposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Asset Disposition and Event of Loss, if the Borrowers state in such notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrowers’ notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereoftwelve (12) month period. Promptly after the end of such twelve (12-month or 18-) month period, as applicable, the Borrower Borrowers shall notify the Administrative Agent whether the such Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrowers’ notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above 1,000,000 not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Priority Term Loans and Incremental Priority Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Priority Term Loans and Incremental Priority Term Loans, if any, in the inverse order of maturity), then to the outstanding Second Out Term Loans and Incremental Second Out Term Loans, if any, until paid in full (such payments being applied to the remaining payments on the Second Out Term Loans and Incremental Second Out Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in 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 Borrowers’ direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date the either Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than that permitted by Section 7.1 (other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 Class7.1(m)), the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby such Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Priority Term Loans and Incremental Priority Term Loans, if any, until paid in full (such payments being applied to the relevant remaining amortization payments on the Priority Term Loans and Incremental Priority Term Loans, if any, in the inverse order of maturity), then to the outstanding Second Out Term Loans and Incremental Second Out Term Loans, if any, until paid in full (such payments being applied to the remaining payments on the Second Out Term Loans and Incremental Second Out Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, and then to the Swing Loans. The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 7.1 or any other terms of the Loan Documentsthis Agreement.
(iii) If On or before April 30th of each year, beginning April 30, 2018, the Borrower or any Restricted Subsidiary Borrowers shall at any time or from time prepay the then‑outstanding Loans by an amount equal to time enter into 50% of Excess Cash Flow of the Borrowers on a Sale/Leaseback Transaction Consolidated basis for the most recently completed Fiscal Year; provided that, no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to a Principal Owned Property or sell such recently completed Fiscal Year to the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease extent that (A) the Principal Owned Property owned by Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of the end of the two consecutive fiscal quarters of the Borrowers immediately preceding the date such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), in either case when and the Borrowers have delivered to the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction dates and the application (B) no Default or Event of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available Default has occurred and is continuing on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent April 30th of such Prepayment Sale/Leaseback Transaction (including year when the amount of the estimated Net Excess Cash Proceeds to Flow payment would otherwise be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that required under this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionSection 2.8(b)(iii). The amount of each such prepayment shall be applied first to the relevant outstanding Priority Term Loans and Incremental Priority Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Priority Term Loans and Incremental Priority Term Loans, if any, in the inverse order of maturity), then to the outstanding Second Out Term Loans and Incremental Second Out Term Loans, if any, until paid in full (such payments being applied to the remaining payments on the Second Out Term Loans and Incremental Second Out Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full, and then to the Swing Loans.
(iv) At The Borrowers shall, on each date (A) the end Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4, Cash Collateralize 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, and (B) a Permitted Refinancing occurs, prepay the applicable Loans subject to such Permitted Refinancing;
(v) Notwithstanding the foregoing provisions of this Section 2.8(b), (A) any Lender may waive, by written notice to Borrowers and the Administrative Agent on or before the date on which such mandatory prepayment would otherwise be required to be made hereunder, the right to receive its amount of such mandatory prepayment of the applicable Loans being prepaid, (B) if any Lender or Lenders elect to waive the right to receive their amount of such mandatory prepayment pursuant to the foregoing clause (A), the total amount that otherwise would have been applied to mandatorily prepay such applicable Loans of such Lender or Lenders shall be applied to prepay the applicable Loans being repaid of the remaining non‑waiving Lender or Lenders holding such Loans on a pro rata basis, based on the respective principal amounts of their outstanding Loans being repaid, and (C) subject to the Intercreditor Agreement, to the extent there are any prepayment amounts remaining after the foregoing application, such amounts shall be distributed to the Second Lien Administrative Agent (or its designated sub-agent) for application to the Second Lien Term Loans as permitted by the Intercreditor Agreement, and to the extent there are any prepayment amounts remaining thereafter, such amounts may be retained by the Borrowers.
(vi) Unless the Borrowers otherwise direct, prepayments of Loans under this Section 2.8(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 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension PeriodPriority Term Loans, Incremental Priority Term Loans, if Holdingsany, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Second Out Term Loans, and secondIncremental Second Out Term Loans, if any, Swing Loans or Eurodollar Loans, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 9.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.
Appears in 1 contract
Sources: First Lien Credit Agreement (Turning Point Brands, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 500,000 in the aggregate so long as no Default or received on account Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within ninety (A90) actually reinvests days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 Restricted Subsidiary shall issue or incur any Indebtedness Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))8.7(a)-(e) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby 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 Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull 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.
(iii) If 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 or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction (commencing with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcofiscal year ending December 31, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”2008), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in Obligations by an aggregate amount equal to 100% fifty percent (50%) of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionBorrower. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit.
(iv) At The Borrower shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the Second Amendment Effective Date until Revolving Loans, Swing Loans, and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondL/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, to prepay outstanding 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 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the terms herein, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 500,000 in the aggregate or received on account so long as no Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within 120 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof120-day period. Promptly after the end of such 12120-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 applied, subject to Section 1.9(b)(vi) below, first to the relevant outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Revolving Term B-2 Loans (with a permanent reduction of based on the relevant Revolving Credit Commitmentsoutstanding principal amounts thereof) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (including Indebtedness 1) equity securities issued in connection with ordinary course employee benefit or incurred under Sections 1.16compensation programs, 1.18 and 1.19 (but excluding Section 1.20 2) capital stock of the Parent issued to the seller of an Acquired Business in connection with a Permitted Acquisition, (3) capital stock of the Parent, the Borrower or any Indebtedness incurred Subsidiary issued to employees or directors (if necessary for such director to qualify as such), (4) capital stock issued to finance Capital Expenditures permitted hereunder or in connection with a Permitted Refinancing Acquisition, or (5) capital stock of all the Parent issued to ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a portion the other then existing shareholders no more than two (2) occasions per fiscal year of existing Term Loans of any Class))the Borrower, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby 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 Proceeds. The amount of each such prepayment shall be applied, subject to Section 1.9(b)(vi) below, first to the outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Term B-2 Loans based on the outstanding principal amounts thereof) 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 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) 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)-(d) or (f) 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 to or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant 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, subject to Section 1.9(b)(vi) below, first to the outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Term B-2 Loans based on the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitmentsoutstanding principal amounts thereof) in accordance with this Section 1.9 until paid in fullfull 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.
(iiiiv) If after the Closing Date the Borrower or any Restricted Subsidiary shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(vi) below, first to the relevant outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Revolving Term B-2 Loans (with a permanent reduction of based on the relevant Revolving Credit Commitmentsoutstanding principal amounts thereof) in accordance with this Section 1.9 until paid in fullfull 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.
(ivv) At the end of any Business Day from and Within 30 days after the Second Amendment Effective Date until the end receipt of the Basket Suspension PeriodParent’s year-end audited financial statements, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two 120 days after the end of each fiscal year of the Parent (2commencing with fiscal year ending December 31, 2007), the Borrower shall prepay the Obligations by an amount equal to the Excess Cash Flow Prepayment Percentage of Excess Cash Flow of Parent and its Subsidiaries for the most recently completed fiscal year of the Parent. The amount of each such prepayment shall be applied, subject to Section 1.9(b)(vi) Business Days) apply such amounts in excess of $100,000,000 firstbelow, first to prepay the outstanding Swing Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and secondTerm B-2 Loans based on the outstanding principal amounts thereof) until paid in full and then to the Revolving Credit.
(vi) Notwithstanding anything to the contrary contained in this Section 1.9(b) or elsewhere in this Agreement, any Lender with an outstanding Term B Loan shall have the option to prepay waive any mandatory prepayment of such Term B Loan pursuant to clauses (i)-(v), both inclusive, of this Section 1.9(b) (each such prepayment a “Waiveable Mandatory Term B Loan Prepayment”) upon the terms and provisions set forth in this Section. In the event any such Lender desires to waive such Lender’s right to receive any such Waiveable Mandatory Term B Loan Prepayment in whole or in part, such Lender shall so advise the Administrative Agent no later than the date on which such prepayment is to occur, which notice shall also include the amount such Lender desires to receive in respect of such prepayment. If any such Lender does not provide such notice, it will be deemed to have accepted 100% of the total amount. In the event that any such Lender waives all or any part of such right to receive any such Waiveable Mandatory Term B Loan Prepayment, the Administrative Agent shall apply 100% of the amount so waived by such Lender to the Term A Loans then outstanding Revolving in accordance with the relevant clause of this Section 1.9(b), provided that no such waiver request shall be honored following the prepayment in full of the Term A Loans.
Appears in 1 contract
Sources: First Lien Credit Agreement (Excelligence Learning Corp)
Mandatory. (i) If the Borrower any Credit Party or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in excess of $500,000 individually or on a cumulative basis in any fiscal year of Credit Parties, then the (x) Borrower Representative 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 such Credit Party or any Restricted such Subsidiary in respect thereof) and, and (y) promptly (and in any event within five (5) Business Days after Days) upon receipt by any Credit Party or the receipt Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $500,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Borrowers shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested in such assets or (By) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest be invested or reinvested, in each case as described in Borrower Representative’s notice with such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the Borrower such Credit Party or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsBorrower Representative’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant amounts outstanding under each of Term Loans Loan A-1 and Revolving Loans Term Loan A-2 in equal amounts until paid in full (with applied on a permanent pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction of the relevant in Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Fourth Restatement Closing Date the Borrower any Credit Party or any Restricted 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 Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness for Borrowed Money, (other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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)6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds assumption to be received by or for the Borrower account of such Credit Party or any Restricted such Subsidiary in respect thereof) and, . Promptly (and in any event within five (5) Business Days after the Days) upon receipt by such Credit Party or such Subsidiary of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceedsissuance, within nine months of the receipt thereof, in one incurrence or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower assumption Borrowers shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionProceeds. The amount of each such prepayment shall be applied first to the relevant amounts outstanding under each of Term Loans Loan A-1 and Revolving Loans Term Loan A-2 in equal amounts until paid in full (with applied on a permanent pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction of the relevant in Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Revolving Loans, and second, to prepay outstanding Revolving Loans.Swing
Appears in 1 contract
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) If In the event and on each occasion that, on or after the Closing Date, the Borrower (or, solely in respect of a Reduction/Prepayment Event described in clauses (a) or (c) of the definition of such term, any Restricted Subsidiary shall at of the Borrower), receives any time Net Cash Proceeds in respect of a Reduction/Prepayment Event consummated on or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be after the Closing Date, then, subject to subsection the immediately succeeding sentence, (iiiA) below) or shall suffer an Event of Loss, then the Borrower shall promptly upon receipt of such Net Cash Proceeds notify the Administrative Agent of such Disposition or Reduction/Prepayment Event of Loss (including and the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary resulting therefrom (together with, in each case, a reasonably detailed calculation thereof and in respect thereofof any Reduction/Prepayment Event described in clause (c) andof the definition of such term, whether or not a prepayment would be required on account thereof pursuant to the final proviso of this Section 2.06(b)) and (B) within five (5) three Business Days after of the receipt of day such Net Cash ProceedsProceeds are received, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Loans in an aggregate amount equal to the lesser of (x) the aggregate principal amount of Loans then outstanding and (y) 100% of such Net Cash Proceeds (or, at the election of the Borrower, an amount selected by the Borrower that is greater than 100% of all such Net Cash Proceeds; provided that this subsection shall such amount is not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of greater than the Borrower not exceeding $2,500,000 amount provided for in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by immediately preceding clause (x)); provided further that, in respect of a Reduction/Prepayment Event described in clause (c) aboveof the definition of such term, 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, shall not be required to the extent make any prepayment under this clause if such Net Cash Proceeds are actually reinvested in such assets (or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function be reinvested) in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets any of its Subsidiaries within 18 12 months following the receipt thereof. Promptly after thereof (but, for the end avoidance of such 12-month or 18-month perioddoubt, 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 if not been so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights foregoing and remedies of the Lenders for any breach of Section 8.7 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior shall be deemed to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be have been received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after at the end of such nine-12 month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction period for purposes of the relevant Revolving Credit Commitments) in accordance with foregoing). Any amounts prepaid pursuant to any mandatory prepayment of the Loans under this Section 1.9 until paid in full2.06(b) may not be re-borrowed.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any Restricted Subsidiary shall at of its Subject Subsidiaries in respect of its property or assets, after the first $30,000,000 of Net Cash Proceeds relating to any time Extraordinary Receipt and thereafter any amount in excess of $5,000,000 for any one event or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event series of Lossrelated events, then the Borrower shall promptly notify the Administrative Agent of such Disposition or Event of Loss (including the prepay an aggregate principal amount of the estimated Loans equal to 100% of all Net Cash Proceeds to be received therefrom within three Business Days after the date of receipt thereof by the Borrower or any Restricted such Subsidiary subject to the provisions of Section 2.05(b)(iv); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the assets or property in respect thereofof which the Extraordinary Receipt was received, it shall deliver written notice of such intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which Borrower receives such Net Cash Proceeds, (B) andif the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested so long as within five (5) Business Days 12 months after the receipt of such Net Cash ProceedsProceeds such reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or unreasonably delayed, and is substantially completed within 24 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 24 months after such date of receipt, the Borrower shall prepay first, have up to an additional 12 months to complete such project so long as it certifies in a written notice to the relevant Term LoansAdministrative Agent delivered prior to the expiration of such 24-month period that it reasonably expects completion to occur within such additional 12-month period and attaching a budget and schedule for the remaining portion of the construction that evidences the same), and second, the relevant Revolving Loans, together with a commensurate permanent reduction (C) within 10 days of the relevant Revolving Credit Commitmentsdate the Borrower consummates such restoration, in an aggregate amount equal repair or replacement or purchase, it shall deliver a certificate of a Responsible Officer to 100% of the amount of all Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash ProceedsProceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(i); provided further that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account not so reinvested at the end of Dispositions during any Fiscal Year such period shall be immediately applied to the prepayment of the Borrower not exceeding $2,500,000 Loans as set forth in this Section 2.05.
(ii) Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied, first, ratably to the Term A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof on a pro rata basis and, thereafter, to the Revolving Credit Facility in the aggregate or received on account manner set forth in clause (iii) of Events of Loss during any Fiscal Year this Section 2.05(b).
(iii) Prepayments of the Borrower not exceeding $2,500,000 Revolving Credit Facility made pursuant to clause (i) of this Section 2.05(b), first, shall be applied to prepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in the aggregate and (y) other than during the Basket Suspension Periodfull, second, shall be applied to prepay Swing Line Loans outstanding at such time until all such Swing Line Loans are paid in full, and, third, shall be applied to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full; and, in the case of any Disposition or Event prepayments of Loss not covered by the Revolving Credit Facility required pursuant to clause (xi) aboveof this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Loans and L/C Borrowings outstanding at such time, may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit, which has been Cash Collateralized, such funds shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(iv) Notwithstanding the provisions of Section 2.05(b)(i), if any mandatory prepayments under Section 2.05(b)(i) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, if the Borrower may defer the making of such mandatory prepayment until the earlier of (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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to such Interest Period and (B) the date thirty days after the date on which such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds mandatory prepayment would otherwise have been required to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullmade.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower any Loan Party or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then the Borrower Representative 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 applicable Loan Party or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt applicable Loan Party or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower Borrowers shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower Loan Parties not exceeding $2,500,000 1,000,000 in the aggregate so long as no Default or received on account Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests Representative states in its notice of such event that the applicable Loan Party or the applicable Subsidiary intends to reinvest, within 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrowers shall not be required to make a mandatory prepayment under this subsection in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof180-day period. Promptly after the end of such 12180-month or 18-month day period, as applicable, the Borrower Representative shall notify the Administrative Agent whether the Borrower applicable Loan Party or a Restricted 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 Borrowers shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 applied, first to the relevant outstanding Term Acquisition Loans until paid in full and then to the Revolving Loans Credit (with without a permanent concomitant reduction of the relevant in Revolving Credit Commitments). If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in accordance with this Section 1.9 until paid in fullthe 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 Representative’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 any Loan Party or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money equity securities issued in connection with the exercise of employee stock options, equity securities issued to employees, directors or representatives under incentive plans and capital stock of Parent issued to the seller of an Acquired Business in connection with an Acquisition permitted by Section 8.7 (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))hereby, the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the applicable Loan Party or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the applicable Loan Party or such Subsidiary of Net Cash Proceeds of such issuance, 100the Borrowers shall prepay the Obligations in an aggregate amount equal to 50% of the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower outstanding Acquisition Loans until paid in full and then to prepay the relevant Term Loans and the relevant Revolving Loans Credit (with without a permanent concomitant reduction of the relevant in Revolving Credit Commitments). Each of the Borrowers acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date any Loan Party or any Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7(a)-(h) hereof, the Borrower Representative 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 applicable Loan Party or such Subsidiary in accordance with this Section 1.9 respect thereof. Promptly upon receipt by the applicable Loan Party or such Subsidiary of Net Cash Proceeds of such issuance, the Borrowers 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 Acquisition Loans until paid in fullfull and then to the Revolving Credit (without a concomitant reduction in Revolving Credit Commitments). The Borrower Each of the Borrowers 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.
(iiiiv) If The Borrowers shall, on each date the Borrower or any Restricted Subsidiary shall at any time or from time Revolving Credit Commitments are reduced pursuant to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell Section 1.13 hereof, prepay the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assetsSwing Loans, and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the extent such Net Cash Proceeds have not been so reinvested, sum of the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the aggregate principal amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension PeriodLoans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondL/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower Representative otherwise directs, prepayments of Loans under this Section 1.9(b) shall be applied first to prepay outstanding Revolving 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 Acquisition 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 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower Upon receipt by any Loan Party or any Restricted Subsidiary shall at of its --------- Subsidiaries of Net Cash Proceeds from any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossAsset Disposition, then the Borrower shall promptly notify prepay the Administrative Agent then outstanding Advances in an amount equal to one-hundred percent (100%) of such Net Cash Proceeds payable concurrently with consummation of such Asset Disposition; provided that no such prepayment need be made (1) unless the -------- Net Proceeds from any single Asset Disposition or Event series of Loss related Asset Dispositions exceed $100,000 (including in which case a prepayment shall be made in the amount of the estimated entire Asset Disposition) or until the cumulative Net Cash Proceeds from all Asset Dispositions by the Borrower in any particular fiscal year exceed $100,000 (in which case a prepayment shall be made in the amount of the Net Proceeds from the specific Asset Disposition (or portion thereof) causing the limit to be received exceeded), except that the terms of this Section shall not be applicable with respect to Asset Dispositions by the Borrower or any Restricted Subsidiary if the Net Proceeds therefrom are reinvested in fixed assets (for use in its business or, with respect thereofto the Borrower, the business of the Subsidiaries) and, within five (5) Business Days after the receipt 180 days of such Asset Disposition, provided that any such Net Proceeds -------- not so reinvested shall be used to prepay the Advances on the 181st day; provided, however, that with respect to the Net Proceeds from the Orpington -------- ------- Sale/Leaseback, the Borrower shall have twenty-four (24) months from the closing of the Orpington Sale/Leaseback to reinvest such Net Proceeds in fixed assets (for use in its business), provided, that, if such Net Proceeds from the -------- Orpington Sale/Leaseback are not so reinvested within such twenty-four (24) month period, any such Net Proceeds not so reinvested shall be used to prepay the Advances on the Business Day immediately succeeding the second anniversary of the closing of the Orpington Sale/Leaseback.
(ii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash ProceedsProceeds from any Equity Issuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, then outstanding Advances in an aggregate amount equal to one hundred percent (100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x%) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds payable concurrently with consummation of such issuance.
(iii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds from the sale or issuance by the Borrower or any of its Subsidiaries of any Debt (other than Debt permitted to be incurred under Section 7.02), the Borrower shall prepay the then outstanding Advances in excess an amount equal to one hundred percent (100%) of the applicable $2,500,000 basket described above not so reinvested. The amount such Net Cash Proceeds payable concurrently with consummation of each such sale or issuance.
(iv) Each prepayment made pursuant to clause (i), (ii), or (iii) shall be applied to prepay the relevant Facilities in the following manner: first, to ----- prepay Revolving Advances then outstanding Term Loans until such Revolving Advances are paid in full and Revolving Loans (with a permanent reduction second, to prepay Letter of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 Advances then outstanding ------ until such Advances are paid in full.
(iiv) If after The Borrower shall, within fifteen (15) days following the Closing Date the Borrower or any Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Moneyend of each month in each Fiscal Year, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 pay to the Administrative Agent for deposit in the 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 exceeds the estimated Net Cash Proceeds Letter of Credit Facility on such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan DocumentsDay.
(iiivi) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00The foregoing notwithstanding, the Borrower shall promptly notify the Administrative Agent provisions of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii2.06(b) shall not require be construed to permit any prepayment Equity Issuance, Debt issuance or Asset Disposition otherwise prohibited under the terms of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullAgreement.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 500,000 in the aggregate so long as no Default or received on account Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within ninety (A90) actually reinvests days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof90-day period. Promptly after the end of such 1290-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations 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 applied, subject to Section 1.9(b)(v) below, first to the relevant outstanding Term Loans (to be applied on a ratable basis between the Term A Loans and Revolving Acquisition Loans (with a permanent reduction of based on the relevant Revolving Credit Commitmentsoutstanding principal amount thereof) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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 Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 (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))hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby 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 Proceeds. The amount of each such prepayment shall be applied by applied, subject to Section 1.9(b)(v) below, first to the Borrower to prepay the relevant outstanding Term Loans (to be applied on a ratable basis between the Term A Loans and Acquisition Loans based on the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitmentsoutstanding principal amount thereof) in accordance with this Section 1.9 until paid in fullfull 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.
(iii) If 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 or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction (commencing with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcofiscal year ending December 31, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”2008), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in Obligations by an aggregate amount equal to 100% the ECF Prepayment Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the amount of all such Net Cash ProceedsBorrower; provided, that this subsection (iii) shall not require any prepayment for the fiscal year ending December 31, 2008, Excess Cash Flow of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceedsand its Subsidiaries shall be calculated for the period from July 1, within nine months of the receipt thereof2008 through December 31, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction2008. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(v) below, first to the relevant outstanding Term Loans (to be applied on a ratable basis between the Term A Loans and Revolving Acquisition Loans (with a permanent reduction of based on the relevant Revolving Credit Commitmentsoutstanding principal amount thereof) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit.
(iv) At The Borrower shall, on each date the end of any Business Day from and after Revolving Credit Commitments are reduced pursuant to Section 1.13 hereof, prepay the Second Amendment Effective Date until Revolving Loans, Swing Loans, and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Periodaggregate principal amount of Revolving Loans, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and secondL/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Notwithstanding anything to the contrary contained in this Section 1.9(b) or elsewhere in this Agreement, any Lender with an outstanding Acquisition Loan shall have the option to prepay waive any mandatory prepayment of such Acquisition Loan pursuant to clauses (i)-(iv), both inclusive, of this Section 1.9(b) (each such prepayment a “Waiveable Mandatory Acquisition Loan Prepayment”) upon the terms and provisions set forth in this Section 1.9(b)(v). In the event any such Lender desires to waive such Lender’s right to receive any such Waiveable Mandatory Acquisition Loan Prepayment in whole or in part, such Lender shall so advise the Administrative Agent no later than the date on which such prepayment is to occur, which notice shall also include the amount such Lender desires to receive in respect of such prepayment. If any such Lender does not provide such notice, it will be deemed to have accepted 100% of such Waiveable Mandatory Acquisition Loan Payment. In the event that any such Lender waives all or any part of such right to receive any such Waiveable Mandatory Acquisition Loan Prepayment, the Administrative Agent shall apply 100% of the amount so waived by such Lender to the Term A Loans then outstanding in accordance with the relevant clause of this Section 1.9(b), provided that no such waiver request shall be honored following the prepayment in full of the Term A Loans.
(vi) 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 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss, then the 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 respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 8.7(a)-(e) and (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))g)-(m) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullProceeds. 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.
(iiiii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into make or agree to make a Sale/Leaseback Transaction Disposition of, or shall suffer an Event of Loss with respect to a Principal Owned to, any Property (including, without limitation, any intellectual property) or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcoshall receive any Extraordinary Income, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, then the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction proposed Disposition or Event of Loss or Extraordinary Income (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five promptly upon receipt (5) but in no event later than 5 Business Days after receipt) by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss or Extraordinary Income, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 10050% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, that this subsection (iii) shall not require any such prepayment with respect to Net Cash Proceeds received on account of Term Loans an Event of Loss so long as such Net Cash Proceeds are applied to replace or Revolving Loans 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 $50,000 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 90 days of the applicable Disposition, the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if thereof in assets similar to the assets which were subject to such Disposition, then the Borrower actually reinvests shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within nine months of Proceeds to the receipt thereof, extent such Net Cash Proceeds are actually reinvested in one or more other Principal Owned Propertiessuch similar assets with such 90-day period. Promptly after the end of such nine90-month day period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has so 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 relevant Term Loans or Revolving Loans Obligations in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionnot so reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullfull and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in 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.
(iii) 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.
(iv) At Unless the end Borrower otherwise directs, 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 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 Business Day from and after Term Loans or Eurodollar Loans accrued interest thereon to the Second Amendment Effective Date until date of prepayment together with any amounts due the end Lenders under Section 1.12 hereof. Each prefunding of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents L/C Obligations shall be made in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansaccordance with Section 9.4 hereof.
Appears in 1 contract
Sources: Credit Agreement (CalAmp Corp.)
Mandatory. The Borrower shall make mandatory prepayments as follows:
(i) If on the last day 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 related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall 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 Subsidiary 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 at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction 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 Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event Disposition described in this Section 2.05(b)(ii), at the election of Loss, then the Borrower shall promptly notify (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition Disposition), and so long as no Default shall have occurred and be continuing, the Borrower or Event such Restricted Subsidiary may reinvest all or any portion of Loss (including the amount of the estimated such Net Cash Proceeds to be received 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 any Restricted Subsidiary in respect thereof(ii) and, within five (5) Business Days 12 months after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all or such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed shall have entered into a definitive agreement to reinvest such Net Cash Proceeds in assets that perform the same or similar function useful in the business of the Borrower or a and its Restricted SubsidiarySubsidiaries, to and the extent such Net Cash Proceeds are actually reinvested in purchase of such assets shall have been consummated within 18 six months following the receipt thereof. Promptly after the end of such 12-month or 18-12 month period; and provided further, as applicablehowever, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has reinvested such that any Net Cash Proceeds in not subject to such assets, and, to the extent such Net Cash Proceeds have not been definitive agreement or so reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, 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 reinvested shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction prepayment of the relevant Revolving Credit Commitments) Loans as set forth in accordance with this Section 1.9 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 (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 Class2.05(b)(ii)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If 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 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 Restricted Subsidiary shall reason the Total Revolving Credit Outstandings at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell exceed the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by Revolving Credit Facility at such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00time, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall immediately prepay first, the relevant Term Revolving Credit Loans, Swing Line Loans and second, L/C Borrowings and/or Cash Collateralize the relevant Revolving Loans, together with a commensurate permanent reduction of L/C Obligations (other than the relevant Revolving Credit Commitments, L/C Borrowings) in an aggregate amount equal to 100% such excess.
(v) 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, if the Cash 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), 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 Net Cash Proceeds; providedtime, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if may be retained by the Borrower actually reinvests such Net for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodCollateralized, the Borrower funds held as Cash Collateral shall notify the Administrative Agent whether be applied (without any further action by or notice to or from the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, any other Loan Party) to reimburse the extent such Net Cash Proceeds have not been so reinvested, L/C Issuer or the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullLenders, as applicable.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Credit Agreement (Universal American Financial Corp)
Mandatory. Subject to the provisions of the Intercreditor Agreement and subject to the prior payment and cash collateralization in full of the First Lien Obligations:
(i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property, then 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 any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the terms herein, (xy) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year fiscal year of the Borrower not exceeding $2,500,000 500,000 in the aggregate or received on account so long as no Event of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate Default then exists, and (yz) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (xy) above, so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests states in its notice of such event that the Borrower or the relevant Subsidiary intends to reinvest, within 120 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets or (B) states in a notice delivered within 12 months of the receipt of with such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof120-day period. Promptly after the end of such 12120-month or 18-month day period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvested. The amount If the Administrative Agent or the Required Lenders so request, all proceeds of each such prepayment Disposition or Event of Loss shall be applied deposited with the Administrative Agent (or its agent) and held by it in 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 relevant outstanding Term Loans and Revolving Loans (with a permanent reduction Collateral Account to or at the Borrower’s direction for application to or reimbursement for the costs of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullreplacing, rebuilding or restoring such Property.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue new equity securities (whether common or incur any Indebtedness for Borrowed Moneypreferred stock or otherwise), other than Indebtedness for Borrowed Money permitted by Section 8.7 (including Indebtedness 1) equity securities issued in connection with ordinary course employee benefit or incurred under Sections 1.16compensation programs, 1.18 and 1.19 (but excluding Section 1.20 2) capital stock of the Parent issued to the seller of an Acquired Business in connection with a Permitted Acquisition, (3) capital stock of the Parent, the Borrower or any Indebtedness incurred Subsidiary issued to employees or directors (if necessary for such director to qualify as such), (4) capital stock issued to finance Capital Expenditures permitted hereunder or in connection with a Permitted Refinancing Acquisition, or (5) capital stock of all the Parent issued to ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a portion the other then existing shareholders no more than two (2) occasions per fiscal year of existing Term Loans of any Class))the Borrower, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or incurrencefor the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby 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 Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) 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)-(d) or (f) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds shall of such issuance to be applied received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower to or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction Obligations in an aggregate amount equal to 100% of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullamount 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.
(iiiiv) If after the Closing Date the Borrower or any Restricted Subsidiary shall at issue any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or any Restricted such Subsidiary in respect thereof) and, within five (5) Business Days after . Promptly upon receipt by the receipt Borrower or such Subsidiary of Net Cash Proceeds of such Net Cash Proceedsissuance, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, . The Borrower acknowledges that this subsection (iii) its performance hereunder shall not require any prepayment of Term Loans or Revolving Loans with limit the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months rights and remedies of the receipt thereof, in one Lenders for any breach of Section 8.7 hereof or more any other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction terms of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fullLoan Documents.
(ivv) At the end of any Business Day from and Within 30 days after the Second Amendment Effective Date until the end receipt of the Basket Suspension PeriodParent’s year-end audited financial statements, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two 120 days after the end of each fiscal year of the Parent (2commencing with fiscal year ending December 31, 2007), the Borrower shall prepay the Obligations by an amount equal to the Excess Cash Flow Prepayment Percentage of Excess Cash Flow of Parent and its Subsidiaries for the most recently completed fiscal year of the Parent.
(vi) Business DaysNotwithstanding anything to the contrary contained in this Section 1.9(b) apply or elsewhere in this Agreement, any Lender with an outstanding Loan shall have the option to waive any mandatory prepayment of such amounts Loan pursuant to clauses (i)-(v), both inclusive, of this Section 1.9(b) (each such prepayment a “Waiveable Mandatory Loan Prepayment”) upon the terms and provisions set forth in excess this Section. In the event any such Lender desires to waive such Lender’s right to receive any such Waiveable Mandatory Loan Prepayment in whole or in part, such Lender shall so advise the Administrative Agent no later than the date on which such prepayment is to occur, which notice shall also include the amount such Lender desires to receive in respect of $100,000,000 firstsuch prepayment. If any such Lender does not provide such notice, it will be deemed to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loanshave accepted 100% of the total amount.
(vii) [Intentionally Omitted.]
Appears in 1 contract
Sources: Second Lien Credit Agreement (Excelligence Learning Corp)
Mandatory. Subject to clause (ivii) If below, if the Borrower or any Restricted Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Fiscal Year, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or such Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsAsset Disposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any each Asset Disposition and Event of Loss, if the Borrower states in such notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause (x) aboveLoss, the Net Cash Proceeds thereof in similar like‑kind assets, then so long as no Default or Event of Default has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted Subsidiary, to the extent Borrower’s notice within such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereoftwelve (12) month period. Promptly after the end of such twelve (12-month or 18-) month period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above 1,000,000 not so invested or reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and Revolving Loans (with a permanent reduction held by it in the Collateral Account. So long as no Default or Event of Default exists, the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
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 Subject to clause (vii) below, if after the Closing Restatement Effective Date the Borrower or any Restricted Subsidiary shall issue any new Ownership Interests (other than Excluded Equity Issuances) or incur or assume any Indebtedness for Borrowed Money, other than that permitted by Section 7.1 (other than Indebtedness for Borrowed Money permitted by Section 8.7 (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 Class7.1(m)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereofby the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, 100% incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by to the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in fulloutstanding Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Administrative Agent or the Lenders for any breach of Section 8.7 7.1 or any other terms of the Loan Documents.
this Agreement. -41- (iii) If the Borrower or any Restricted Subsidiary shall at any time or from time Subject to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdcoclause (vii) below, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00before April 30th of each year, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) andbeginning April 30, within five (5) Business Days after the receipt of such Net Cash Proceeds2019, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then‑outstanding Loans by an aggregate amount equal to 10050% of the amount Excess Cash Flow of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests on a Consolidated basis for the most recently completed Fiscal Year; provided that, no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such Net Cash Proceeds, within nine months recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the two consecutive fiscal quarters of the Borrower shall notify immediately preceding the date such Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrower has delivered to the Administrative Agent whether the Borrower compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or a Restricted Subsidiary Event of Default has so 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 or Revolving Loans in the amount occurred and is continuing on April 30th of such Net year when the Excess Cash Proceeds received from the applicable Prepayment Sale/Leaseback TransactionFlow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loans.
Appears in 1 contract
Sources: Second Lien Credit Agreement
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, 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 any Restricted such Subsidiary in respect thereof) and, within five and (5y) Business Days after promptly upon receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Periodprovided, in the case of any Disposition or Event of Loss not covered by clause (x) aboveeach 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 has occurred and is continuingthen exists, if the Borrower (A) actually reinvests shall not be required to make a mandatory prepayment under this Section in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function as described in the business of the Borrower or a Restricted SubsidiaryBorrower’s notice with such 180-day period, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly and promptly after the end of such 12180-month or 18-month day 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 first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvestedinvested 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 relevant outstanding Term Loans until paid in full and Revolving then to the Line of Credit Loans (with a permanent without any reduction in the Line of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Restricted 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 exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrenceincurrence to be received by the Borrower or such Subsidiary in respect thereof. Within Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (525%) Business Days after receipt thereof, 100% of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans until paid in full and then to the relevant Revolving Line of Credit Loans (with a permanent without any reduction in the Line of the relevant Revolving Credit Commitments) 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 6.11 or any other terms of the Loan Documentsthis Agreement.
(iii) If On or before the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell date that is thirty (30) days after the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which date annual financial statements are available required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00about December 31, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2011, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in then-outstanding Loans by an aggregate amount equal to 100% (x) the applicable ECF Percentage for the most recently completed fiscal year of the amount Borrower, multiplied by (y) Cash Flow of all Borrower and its Subsidiaries for such Net Cash Proceeds; providedfiscal year (or, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with in the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months case of the receipt thereoffiscal year ending on or about December 31, in one or more other Principal Owned Properties. Promptly after 2011, for the period commencing on the first day of the first month following the Closing Date through the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transactionfiscal year) . The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and Revolving then to the Line of Credit Loans (with a permanent without reduction of the relevant Revolving Line of Credit CommitmentsCommitment) in accordance with this Section 1.9 until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower 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) At The Borrower shall, on each date the end Line of any Business Day from and after Credit Commitments are reduced pursuant to Section 2.10, prepay the Second Amendment Effective Date until Line of Credit Loans and, if necessary, prefund the end L/C Obligations by the amount, if any, necessary to reduce the sum of the Basket Suspension Period, if Holdings, aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess amount to which the Line of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving LoansCredit Commitments have been so reduced.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of LossLoss with respect to any Property which results in Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of Holdings, 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 any Restricted such Subsidiary in respect thereof) and, within and (y) no later than five (5) Business Days after following receipt by the receipt Borrower or the Subsidiary of the Net Cash Proceeds of such Net Cash ProceedsDisposition or such Event of Loss, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in an aggregate amount equal to 100100.0% of the amount of all such Net Cash ProceedsProceeds in excess of $5,000,000 for the applicable fiscal year; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the 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 (y) other than during the Basket Suspension Period, in the case of any 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 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss not covered by clause or, in each case, if so committed to be invested or reinvested within such 365 day period, invested or reinvested within 180 days after such initial 365 day period, the Net Cash Proceeds thereof in assets used or useful in the business of the Borrower and its Subsidiaries (x) aboveother than current assets), then so long as no Event of Default has occurred and is continuingthen exists, if the Borrower (Ashall not be required to make a mandatory prepayment under this Section 2.8(b)(i) actually reinvests in respect of 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, Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has contractually committed to reinvest be invested or reinvested (and actually reinvested within such Net Cash Proceeds in assets that perform the same or similar function extension period) as described in the business of the Borrower Borrower’s notice within such 365-day period (or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereofextension period). Promptly after the end of such 12365-month day period (or 18-month such extension period, as applicable), the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted such Subsidiary has invested or reinvested such Net Cash Proceeds as described in such assetsthe Borrower’s notice, and, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, Obligations in the amount of such Net Cash Proceeds in excess of $5,000,000 for the applicable $2,500,000 basket described above fiscal year not so invested or reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans and until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue incur or incur assume any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money that permitted by Section 8.7 (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))7.1, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrenceassumption to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Within five (5) Business Days after Promptly upon receipt thereof, 100% by the Borrower or such Subsidiary of Net Cash Proceeds of such incurrence or assumption the Borrower shall prepay the Obligations in an amount equal to such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be applied by first to the Borrower to prepay the relevant outstanding Term Loans and until paid in full (such prepayments being applied ratably to the relevant remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full. ), then to Swing Loans and then to Cash Collateralize Letters of 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 7.1 or any other terms of the Loan Documentsthis Agreement.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period Within fifteen (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which 15) days after annual financial statements are available on or prior required to have been delivered pursuant to Section 6.1(b), beginning with the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00fiscal year ending December 31, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds2022, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in Obligations by an aggregate amount equal to 100(1) 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the sum of:
(A) all voluntary prepayments of Term Loans and any Incremental Term Loans; and
(B) all voluntary prepayments of Revolving Loans to the extent the applicable Revolving Credit Commitments are permanently reduced by the amount of all such Net payments; in each case of clauses (ii)(A) and (iii)(B) above, during such calendar year (and not applied to the Excess Cash Proceeds; provided, that Flow prepayment under this subsection clause (iii) shall not require any prepayment of Term Loans for the prior year) or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month periodcalendar year and prior to the prepayment date in this clause (iii), the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so reinvested such Net Cash Proceeds in such assets, and, and to the extent such prepayments are funded with Internally Generated Funds; provided that (A) if the Consolidated Total Net Cash Proceeds have not been so reinvested, Leverage Ratio as of the Borrower shall promptly prepay the relevant Term Loans or Revolving Loans in the amount end of such fiscal year is less than 3.00:1.00 but equal to or greater than 2.50:1.00, then such percentage shall be reduced to 25.0% and (B) if the Consolidated Total Net Cash Proceeds received from Leverage Ratio as of the applicable Prepayment Sale/Leaseback Transactionend of such fiscal year is less than 2.50:1.00, then such percentage shall be reduced to 0.0%. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), and then to the Revolving Loans until paid in full (with without a corresponding permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(iv) At The Borrower shall, on each date the end Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 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 under this Section 2.8(b) shall be applied first ratably to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, to prepay outstanding Swing Term Loans or Eurodollar Loans, and second, accrued interest thereon to prepay outstanding Revolving Loansthe date of prepayment together with any amounts due the Lenders under Section 9.1. Each Cash Collateralization of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Prepayment Asset Sale occurs or (2) any Casualty Event occurs, which in the Borrower aggregate results in the realization or receipt by any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event Company of LossNet Cash Proceeds, then the Borrower shall promptly notify cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and 2022 Incremental Term B-2 Loans on a pro rata basis in an amount equal to the Asset Sale Percentage of all Net Cash Proceeds received (the “Applicable Asset Sale Proceeds”); provided that (x) no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 2.06(b)(i)(B) (which election may only be made if no Specified Event of Default has occurred and is then continuing) and (y) if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event of Loss (including such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower, at its election, may apply the Applicable 89
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of the estimated Initial Term Loans and 2022 Incremental Term B-2 Loans (on a pro rata basis) in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a) for the relevant Excess Cash Flow Period, the Borrower shall prepay firstcause to be prepaid an aggregate principal amount of the Initial Term Loans and the 2022 Incremental Term B-2 Loans on a pro rata basis, and any other Term Loans then subject to ratable prepayment requirements in accordance with Section 2.06(b)(iv) in an amount equal to the relevant Excess Cash Flow Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus the sum of (1) the amount of any voluntary prepayments of the Term Loans, Repatriation Bridge Loans and second, any other prepayments of Incremental Equivalent Debt and/or other Indebtedness secured by Liens on the relevant Revolving Loans, together Collateral on a pari passu or senior basis with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of Liens on the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) received on account of Dispositions during any Fiscal Year of Collateral securing the Borrower not exceeding $2,500,000 in Initial Term Loans and the 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 (y) other than 2022 Incremental Term B-2 Loans during the Basket Suspension Period, in the case of any Disposition or Event of Loss not Excess Cash Flow Period covered by clause (x) above, so long as no Event of Default has occurred such financial statements 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 are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 12Excess Cash Flow Period and prior to the payment date (including in connection with debt buybacks made by the Borrower in an amount equal to the discounted amount actually paid in respect thereof pursuant to Section 2.06(d), Section 2.07 of the Guaranty Agreement and/or otherwise, and/or the application of yank-month a-bank provisions that result 90
(iv) Except as otherwise provided in any Incremental Joinder, Refinancing Amendment or 18-month periodExtension Amendment, in each case with respect to the Class or Classes of Term Loans covered thereby, each prepayment of Term Loans pursuant to this Section 2.06(b) shall be applied in a manner as applicabledirected by the Borrower among any Class or Classes of Term Loans, and without any such direction, ratably to each Class of the Term Loans (based on the amount of outstanding principal) and in direct order of maturities to the principal repayment installments of the Term Loans that are due after the date of such prepayment; provided that, the Borrower may not direct any mandatory prepayments under one Class or Classes of Term Loans to a later maturing Class or Classes of Term Loans without at least a pro rata repayment of any related earlier maturing Class or Classes.
(v) The Borrower shall notify the Administrative Agent whether in writing of any mandatory prepayment of Initial Term Loans and/or 2022 Incremental Term B-2 Loans required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.06(b) at least (A) in the case of the prepayment of Term Loans which are Base Rate Loans, one Business Day and (B) in the case of prepayments of Term Loans which are Term SOFR Loans, three Business Days, in each case prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
(vi) In the event that on any Revaluation Date (after giving effect to the determination of the Total Revolving Outstandings with respect to the applicable Revolving Credit Facility) the Total Revolving Outstandings with respect to such Revolving Credit Facility exceeds an amount equal to 105% of the total Revolving Credit Commitments under such Revolving Credit Facility, the Borrower shall, within two Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Credit Loans or a Restricted Subsidiary has reinvested Swing Line Loans and/or reduce L/C Obligations (in each case, taking the Dollar Equivalent of any amounts in an Alternate Currency), in an aggregate amount sufficient to reduce such Net Cash Proceeds in Total Revolving Outstandings as of the date of such assets, andpayment to 91
(vii) [Reserved].
(viii) Notwithstanding any other provisions of Section 2.06(b), to the extent such any prepayment otherwise required by the realization or receipt of any or all of the Net Cash Proceeds have not been so reinvestedof any Disposition of property or assets by a Non-U.S. Subsidiary (or any of their Subsidiaries) (a “Foreign Asset Sale”), the Net Cash Proceeds of any Casualty Event realized or received by a Non-U.S. Subsidiary (or any of its Subsidiaries) (a “Foreign Recovery Event”), or Excess Cash Flow attributable to Non-U.S. Subsidiaries (or any of their Subsidiaries) (a “Foreign Cash Sweep”) would result in material and adverse Tax consequences to the Borrower shall promptly prepay firstor its direct or indirect owners or Subsidiaries as reasonably determined by the Borrower or is prohibited or delayed by any applicable Law (including, without limitation, capital maintenance, financial assistance, corporate benefit or other restrictions (including as to lack of distributable reserves) on up streaming of cash intragroup and the relevant Term Loans, fiduciary and second, statutory duties of the relevant Revolving Loans, together with a commensurate permanent reduction management of the relevant Revolving Credit Commitmentsmembers of the relevant Non-U.S. Subsidiary or any of its Subsidiaries giving rise to any risk of personal liability, in including any civil or criminal liability) or other material agreements from being repatriated to or passed on to or used for the amount benefit of the Borrower, the portion of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above or Excess Cash Flow so affected will not so reinvested. The amount of each such prepayment shall be required to be applied to prepay the Initial Term Loans or the 2022 Incremental Term B-2 Loans at the times provided in Section 2.06(b) but may be retained by the applicable Non-U.S. Subsidiary or any of its Subsidiaries so long, but only so long, as such material and adverse Tax consequences would so result or the applicable Law or material agreement will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower, as applicable (the Borrower hereby agreeing to use (or cause the applicable Non-U.S. Subsidiary or its applicable Subsidiary to use) all commercially reasonable efforts for one year to promptly overcome or eliminate any such restrictions on repatriation, passing on or other use for the benefit of the Borrower and/or use the other cash sources of the Borrower and the Restricted Subsidiaries to make the relevant outstanding Term Loans prepayment) and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 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 (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 once such repatriation of any Class)), the Borrower shall promptly notify the Administrative Agent of the estimated such affected Net Cash Proceeds of or Excess Cash Flow is permitted under the applicable Law, such issuance or incurrence. Within five (5) Business Days after receipt thereof, 100% of repatriation will be promptly effected and such repatriated Net Cash Proceeds shall or Excess Cash Flow will be applied by the Borrower to prepay the relevant Term Loans and the relevant Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) 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 or any other terms of the Loan Documents.
(iii) If the Borrower or any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay first, the relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, that this subsection (iii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower actually reinvests such Net Cash Proceeds, within nine months of the receipt thereof, in one or more other Principal Owned Properties. Promptly after the end of such nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans and Revolving Loans (with a permanent reduction of the relevant Revolving Credit Commitments) in accordance with this Section 1.9 until paid in full.
(iv) At the end of any Business Day from and after the Second Amendment Effective Date until the end of the Basket Suspension Period, if Holdings, the Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the Borrower shall promptly (and in any event within not later than two Business Days after such repatriation) (2net of additional Taxes payable or reserved against as a result thereof) Business Daysto the prepayment of the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to Section 2.06(b). For the avoidance of doubt, notwithstanding any other provisions of Section 2.06(b) apply , any prepayment required as a result of a Foreign Asset Sale, Foreign Recovery Event or Foreign Cash Sweep (whether or not subject to the other terms of this Section 2.06(b)(viii)) shall be net of additional Taxes payable or reserved against as a result of such prepayment.
(ix) Notwithstanding the foregoing or any other provision in this Agreement, each Term Lender shall have the right to reject its applicable percentage of any repayment or prepayment of the Term Loans pursuant to Section 2.06(b) (each such Lender, a “Rejecting Lender”), in which case the amounts in excess so rejected may be retained by the Borrower (the aggregate amount of $100,000,000 firstsuch proceeds so rejected as of any date of determination, to prepay outstanding Swing Loans, and second, to prepay outstanding Revolving Loansthe “Declined Proceeds”).
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