Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Loans), and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans). Such notice shall specify the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entirety. (b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default. (c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing. (d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Sources: Credit Agreement (Servicemaster Co)
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it it, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 1:00 P.M., New York City time three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and or prior to 12:00 P.M., New York City time at least one Business Day’s irrevocable notice Day (or such shorter period as may be agreed by the Borrower to the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of ABR Loans). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million; provided thatprovided, that notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made on or prior to the twelve-month anniversary of the Restatement Effective Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b).
(bi) If The Borrower shall, in accordance with Subsection 4.4(c), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date Restatement Effective Date, the Borrower or any of its Restricted Subsidiary Subsidiaries shall incur Incur Indebtedness for borrowed money (other than excluding Indebtedness permitted pursuant to subsection 7.1Subsection 8.1), then, in each case, the Borrower shall prepayshall, in accordance with subsections 3.4(e) and (fSubsection 4.4(c), prepay the Term Loans in an amount equal to (i) 100100.0% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied or offered (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights notice given to each Lender of the Administrative Agent Prepayment Date, as contemplated by Subsection 4.4(d), and (iii) the Lenders set forth Borrower shall, in Section 8accordance with Subsection 4.4(c), except that in prepay the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all Term Loans within 120 days following the last day of the Term Loans, termination of all Commitments hereunder and termination of immediately preceding Fiscal Year (commencing with the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower Fiscal Year ending on or after about December 31, 2008 2017) (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (AA)(1) 50.0% (xas may be adjusted pursuant to the last proviso of this clause (iii)) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year such Fiscal Year minus (ii2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans), Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to subsection 3.4(aSubsection 4.4(a) and pari passu Indebtedness (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, repaid, repurchased or retired and any prepayment of Term Loans (including Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans) pursuant to Subsection 4.4(i) (provided that such deduction for prepayments pursuant to Subsection 4.4(i) shall be limited to the actual cash amount of such prepayment), in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to Subsection 4.4(a) during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to Subsection 4.4(h) or the other clauses of this Subsection 4.4(b) shall be so designated), (y) any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilitySenior ABL Facility during such Fiscal Year (which, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtednessany event, minus shall not include any designated prepayment pursuant to clause (yz) below), and (z) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilitySenior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(b) shall be so designated), in each case since the end of such fiscal year and on or prior to such ECF Payment Datecase, excluding prepayments funded with proceeds from the incurrence Incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Dateincluding a revolving credit facility) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied or offered (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans; provided, that such percentage in clause (A)(1) above shall be reduced to 0% if the Consolidated Net Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 5.75:1.00. For Nothing in this Subsection 4.4(b) shall limit the avoidance rights of doubt, for purposes the Agents and the Lenders set forth in Section 9.
(c) Subject to the last sentence of this subsection 3.4(cSubsection 4.4(d) and Subsection 4.4(g), proceeds from each prepayment of Term Loans pursuant to Subsection 4.4(b) shall be allocated pro rata among the Incurrence Initial Term Loans, the Incremental Term Loans, Extended Term Loans and Specified Refinancing Term Loans and shall be applied within each Tranche of long-term Indebtedness Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity); provided, that at the request of the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall not be deemed have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingsuch Tranches on a pro rata basis.
(d) Notwithstanding any other provision of this Subsection 4.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Subsection 4.4(a) or (b), exchange such Lender’s portion of the Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).
(e) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay shall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Subsection 4.4(b)(iii), three Business Days prior to the extent required by subsection 7.4(b)(iidate on which such payment is due and (y) pursuant to Subsection 4.4(b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(i), on or before the date specified in Subsection 8.4(b) and (ii) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(ii) or (iii), on or before the date specified in Subsection 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Subject to the following sentence, once given, such notice shall be irrevocable and all amounts subject to subsection 7.4(csuch notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Subsection 4.4(d)). Any such notice of prepayment pursuant to Subsection 4.4(b) may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent, on or prior to the specified effective date) if such condition is not satisfied. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date (or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to pay or prepay other obligations under other Credit Facilities, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s irrevocable notice by or prior to 2:00 P.M., New York City time on the Borrower to the Administrative Agent date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in a minimum amount of $1,000,000 and integral multiples of $1.0 million500,000 in excess thereof; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety.
(b. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) If on or made prior to the date that is six months after the Closing Third Amendment Effective Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured term loan financing incurred in a Repricing Transaction shall incur Indebtedness for borrowed money be accompanied by the payment of the fee required by Subsection 4.5(b).
(b) [Reserved].Prepayment Premium. Each optional prepayment of Incremental B-1 Terms Loans pursuant to Subsection 4.4(a) and mandatory prepayment of Incremental B-1 Term Loans pursuant to Subsection 4.4(e) (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(eSubsection 4.4(e)(i) and (fiii), ) made on or prior to the Term Loans in an amount date that is the first anniversary of the Fourth Amendment Effective Date shall be accompanied by the payment of a premium equal to (i) 1001.00% of the Net Cash Proceeds thereof minus aggregate principal amount of the Incremental B-1 Term Loans being prepaid (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepayincluding, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loanswithout limitation, in each case connection with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of DefaultRepricing Transaction).
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing[Reserved].
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))[Reserved].
Appears in 1 contract
Sources: Incremental Term Loan Agreement (Floor & Decor Holdings, Inc.)
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it it, in whole or in part, subject to subsection 3.12Section 4.12, without premium or penaltypenalty (except as provided in Section 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and or prior to 2:00 P.M., New York City time at least one Business Day’s irrevocable notice by the Borrower Day prior to the Administrative Agent date of prepayment (in the case of ABR Loans). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSection 4.12. Partial prepayments pursuant to this subsection 3.4(aSection 4.4(a) shall be in multiples equal to $1.0 million or a whole multiple of $1.0 million500,000 in excess thereof; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Section 4.4(a) made on or prior to the first anniversary of the Closing Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Section 4.5(b).
(bi) If The Borrower shall, in accordance with Section 4.4(c), prepay the Term Loans to the extent required by Section 8.3; (ii) if on or after the Closing Date Date, the Borrower or any of its Restricted Subsidiary Subsidiaries shall incur Indebtedness for borrowed money (other than excluding Indebtedness permitted pursuant to subsection 7.1Section 8.1), then, in each case, the Borrower shall prepayshall, in accordance with subsections 3.4(e) and (fSection 4.4(c), prepay the Term Loans in an amount equal to (i) 100100.0% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights notice given to each Lender of the Administrative Agent Prepayment Date, as contemplated by Section 4.4(d), and (iii) the Lenders set forth Borrower shall, in accordance with Section 84.4(c), except that in prepay the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all Term Loans within 120 days following the last day of the Term Loans, termination of all Commitments hereunder and termination of immediately preceding Fiscal Year (commencing with the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower Fiscal Year ending on or after December 31about September 30, 2008 2014) (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x1) 50.0% (as may be adjusted pursuant to the ECF Percentage last proviso of this clause (iiii)) of the Borrower’s Excess Cash Flow for the immediately preceding fiscal year such Fiscal Year minus (ii2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans) repaid pursuant to Section 2.2 (b) or prepaid pursuant to subsection 3.4(aSection 4.4(a) and Pari Passu Indebtedness (other than the Revolving Facility Loans) (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, redeemed, repurchased or repaid pursuant to a scheduled principal payment, in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans) prepaid pursuant to Section 4.4(a) and Pari Passu Indebtedness (other than the Revolving Facility Loans) (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, redeemed, repurchased or repaid during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Section 4.4(b)(iii) (provided that no prepayments made pursuant to Section 4.4(h) or the other clauses of this Section 4.4(b) shall be included in Section 4.4(b)(iii)(A)(2)(w) or (x)), (y) any Revolving Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilityFacility during such Fiscal Year (which, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtednessany event, minus shall not include any designated prepayment pursuant to clause (yz) below), and (z) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilityFacility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Section 4.4(b)(iii), in each case since the end of such fiscal year and on or prior to such ECF Payment Datecase, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to (x) 25% if the Senior Secured Debt to EBITDA Ratio as of the last day of the immediately preceding Fiscal Year was less than or equal to 2.00:1.00 and greater than 1.50:1.00 and (y) 0% if the Senior Secured Debt to EBITDA Ratio as of the last day of the immediately preceding Fiscal Year was less than or equal to 1.50:1.00. For Nothing in this Section 4.4(b) shall limit the avoidance rights of doubtthe Agents and the Lenders set forth in Section 9.
(c) Subject to the last sentence of Section 4.4(d) and Section 4.4(g), for purposes each prepayment of Term Loans pursuant to Section 4.4(b) shall be allocated pro rata among the Initial Term Loans, the Incremental Term Loans and the Extended Term Loans; provided, that at the request of the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to Section 4.4(a) and (b) shall be applied within each Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity). Notwithstanding any other provision of this subsection 3.4(cSection 4.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Section 4.4(a) or (b), proceeds from exchange such Lender’s portion of the Incurrence Term Loan to be prepaid for Rollover Indebtedness, in lieu of long-term Indebtedness such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall not be deemed to include proceeds from the Incurrence of Indebtedness repaid for all purposes under the Revolving Facility, any Special Purpose Financing Loan Documents); provided that the Administrative Agent shall have no duties or any other revolving credit or working capital financingobligations to manage such Rollover Indebtedness.
(d) The Borrower shallshall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Section 4.4(b)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to Section 4.4 (b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Section 4.4(b)(i), on or before the date specified in Section 8.3(c), and (ii) in the case of mandatory prepayments pursuant to Section 4.4(b)(ii) or (iii), on or before the date specified in Section 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Section 4.4(d)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment pursuant to Section 4.4(b)(i) or (iii) by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness, including the Holdings Notes, the Existing Unsecured Notes and any Subordinated Indebtedness, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement. In connection with any mandatory prepayments by the Borrower pursuant to Section 4.4(b), such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar Loans; provided that if no Lenders exercise the right to decline a mandatory prepayment pursuant to Section 4.4(b), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans.
(e) Amounts prepaid on account of Term Loans pursuant to Section 4.4(a), (b) or (h) may not be reborrowed.
(f) Notwithstanding the foregoing provisions of this Section 4.4, if at any time any prepayment of the Term Loans pursuant to Section 4.4(a) or (b) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower incurring breakage costs under Section 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid), to be held as security for the obligations of the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by the Borrower) or (ii) make a prepayment of the Term Loans in accordance with subsections 3.4(eSection 4.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans shall continue to bear interest in accordance with Section 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid. In addition, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be applied to prepay Term Loans pursuant to Section 4.4(b)(i) or (iii) would violate applicable Laws or result in material adverse tax consequences to the Borrower or any of its Restricted Subsidiaries, then the Borrower shall not be required to prepay such amounts as required thereunder; provided that the Borrower and 3.4(fits Subsidiaries shall take commercially reasonable actions to repatriate the proceeds subject to such prepayments in order to effect such prepayments without violating applicable Laws or incurring material adverse tax consequences.
(g) Notwithstanding anything to the contrary herein, this Section 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to Sections 2.6 and 2.8, as applicable, or pursuant to any other credit facility added pursuant to Section 2.6 or 11.1(e).
(h) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Section 9.1(a) or (f) has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
(i) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Section 4.4(h); provided that the Borrower shall not initiate any action under this Section 4.4(h) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date or (2) at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender. Each Lender participating in any Discounted Term Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent required permitted by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).law, any claims such Lender may have against the Borrower, its Subsidiaries, the Administr
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it it, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b) or Subsection 4.5(c)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 1:00 P.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and or prior to 1:00 P.M., New York City time at least one Business Day’s irrevocable notice by the Borrower Day prior to the Administrative Agent date of prepayment (in the case of ABR Loans). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million500,000; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made on or prior to the second anniversary of the Closing Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b). Each prepayment of Tranche B Term Loans pursuant to this Subsection 4.4(a) made within six months of the Extension Amendment No. 1 Effective Date in connection with a Tranche B Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(c).
(bi) If The Borrower shall, in accordance with Subsection 4.4(c), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date Date, the Borrower or any of its Restricted Subsidiary Subsidiaries shall incur Incur Indebtedness for borrowed money (other than excluding Indebtedness permitted pursuant to subsection 7.1Subsection 8.1), then, in each case, the Borrower shall prepayshall, in accordance with subsections 3.4(e) and (fSubsection 4.4(c), prepay the Term Loans in an amount equal to (i) 100100.0% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights notice given to each Lender of the Administrative Agent Prepayment Date, as contemplated by Subsection 4.4(d), and (iii) the Lenders set forth Borrower shall, in Section 8accordance with Subsection 4.4(c), except that in prepay the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all Term Loans within 120 days following the last day of the Term Loans, termination of all Commitments hereunder and termination of immediately preceding Fiscal Year (commencing with the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower Fiscal Year ending on or after December 31about November 3, 2008 2013) (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (AA)(1) 50.0% (xas may be adjusted pursuant to the last proviso of this clause (iii)) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year such Fiscal Year minus (ii2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to subsection 3.4(aSubsection 4.4(a) during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to Subsection 4.4(a) during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to Subsection 4.4(h) or the other clauses of this Subsection 4.4(b) shall be so designated), (y) any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilitySenior ABL Facility during such Fiscal Year (which, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtednessany event, minus shall not include any designated prepayment pursuant to clause (yz) below), and (z) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilitySenior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(b) shall be so designated), in each case since the end of such fiscal year and on or prior to such ECF Payment Datecase, excluding prepayments funded with proceeds from the incurrence Incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Dateincluding a revolving credit facility) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Total Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 2.50:1.00. For Nothing in this Subsection 4.4(b) shall limit the avoidance rights of doubt, for purposes the Agents and the Lenders set forth in Section 9.
(c) Subject to the last two sentences of this subsection 3.4(cSubsection 4.4(d) and Subsection 4.4(g), proceeds from each prepayment of Term Loans pursuant to Subsection 4.4(b) shall be allocated pro rata among the Incurrence Initial Term Loans, the Tranche B Term Loans, the Incremental Term Loans and the Extended Term Loans; provided, that at the request of long-term Indebtedness the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall not have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to Subsection 4.4(a) and (b) shall be deemed applied within each Tranche of Term Loans to include proceeds from the Incurrence respective installments of Indebtedness under principal thereof in the Revolving Facilitymanner directed by the Borrower (or, any Special Purpose Financing or any other revolving credit or working capital financingif no such direction is given, in direct order of maturity).
(d) The Borrower shallshall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Subsection 4.4(b)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to Subsection 4.4(b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(i), on or before the date specified in Subsection 8.4(b) and (ii) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(ii) or (iii), on or before the date specified in Subsection 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Subsection 4.4(d)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness, including any Junior Debt, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement. Notwithstanding any other provision of this Subsection 4.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Subsection 4.4(a) or 4.4(b), exchange such Lender’s portion of the Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).
(e) Amounts prepaid on account of Term Loans pursuant to Subsection 4.4(a), (b) or (h) may not be reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(a) or (b) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid), to be held as security for the obligations of the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by the Borrower) or (ii) make a prepayment of the Term Loans in accordance with subsections 3.4(eSubsection 4.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid. In addition, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be applied to prepay Term Loans pursuant to Subsection 4.4(b) would result in material adverse tax consequences to the Borrower or any of its Restricted Subsidiaries, then the Borrower shall not be required to prepay such amounts as required thereunder; provided that the Borrower shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without incurring material adverse tax consequences.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and 3.4(fthe Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to Subsections 2.6 and 2.8, as applicable, or pursuant to any other credit or letter of credit facility added pursuant to Subsection 2.6 or 11.1(e).
(h) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
(i) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Subsection 4.4(h); provided that the Borrower shall not initiate any action under this Subsection 4.4(h) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date or (2) at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender. Each Lender participating in any Discounted Term Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent required permitted by subsection 7.4(b)(iilaw, any claims such Lender may have against the Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Discounted Term Loan Prepayment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders. Any Term Loans prepaid pursuant to this Subsection 4.4(h) (subject to subsection 7.4(c))shall be immediately and automatically cancelled.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may may, at any time and from time to time time, prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penaltypenalty (except, with respect to Eurodollar Loans that are prepaid on a date other than the last day of the Interest Period with respect thereto, as provided under subsection 4.11), upon (i) in the case of prepayments of Eurodollar Loans, at least three Business Days’ ' irrevocable notice (which notice may be given by the Borrower telephone (to be promptly confirmed in writing, including by facsimile) to the Administrative Agent and (ii) in the case of Eurocurrency prepayments of ABR Loans (other than Swing Line Loans), and at least one Business Day’s irrevocable notice (which notice may be given by the Borrower telephone (to be promptly confirmed in writing, including by facsimile)) to the Administrative Agent (prior to 11:30 A.M., New York City time, on the date of such prepayment, in the each case of ABR Loans). Such notice shall specify specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and 4.11 in connection therewith and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Partial prepayments Amounts prepaid on account of the Term Loans pursuant to this subsection 3.4(a) shall may not be reborrowed and will be applied to the respective installments thereof in the scheduled order of principal of such Term Loans in such order as the Borrower may directmaturity thereof. Partial prepayments pursuant to under this subsection 3.4(a4.1(a) shall be be, in multiples the case of Eurodollar Loans, in an aggregate principal amount of $1.0 million; provided that10,000,000 or a whole multiple of $1,000,000 in excess thereof and in the case of ABR Loans, notwithstanding the foregoing, the Term Loans may be prepaid in their entiretyan aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) If on or after the Closing Date the Borrower or If, at any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each casetime, the Borrower shall prepay, in accordance with subsections 3.4(eAggregate Outstanding Extensions of Credit at such time exceed (x) and the Borrowing Base at such time or (f)y) if applicable, the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”)Interim Maximum Amount, the Borrower shall, without notice or demand, immediately repay Swing Line Loans then outstanding and/or, after the Swing Line Loans have been paid in accordance with subsections 3.4(e) and (f)full, prepay the Term Revolving Loans in an aggregate principal amount equal to (A) (x) the ECF Percentage lesser of (i) the Borrower’s Excess Cash Flow for amount of such excess and (ii) the aggregate principal amount of Swing Line Loans and Revolving Loans then outstanding, together with interest accrued to the date of such payment or prepayment on the principal so prepaid and any amounts payable under subsection 4.11 in connection therewith. To the extent that after giving effect to any prepayment of Swing Line Loans and Revolving Loans required by the preceding sentence, the Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time or the Interim Maximum Amount, if applicable, the Borrower shall, without notice or demand, immediately deposit in the Collateral Account upon terms reasonably satisfactory to the Administrative Agent an amount equal to the lesser of (i) the aggregate then outstanding L/C Obligations and (ii) the amount of such remaining excess. The Administrative Agent shall apply any cash deposited in the Collateral Account (to the extent thereof) to pay any Reimbursement Obligations which become due thereafter. To the extent that after giving effect to any prepayment of the Revolving Loans and cash deposits required by the preceding fiscal year minus sentences, the Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time or the Interim Maximum Amount, if applicable, the Borrower shall, without notice or demand, immediately repay the Term Loans in the scheduled order of maturity thereof in an aggregate principal amount equal to the lesser of (i) the amount of such excess and (ii) the aggregate principal amount of Term Loans then outstanding, together with interest accrued to the date of such payment or prepayment on the principal so prepaid pursuant to subsection 3.4(a), and any amounts payable under subsection 4.11 in connection therewith. The Borrower shall also prepay the Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under required to comply with subsection 3.16.
(c) The Borrower shall repay the Revolving FacilityLoans, in each case during such fiscal year excluding prepayments funded with proceeds from within three Business Days after the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied receipt by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by of any Asset Sale Proceeds in respect of the terms thereof) Collateral, in an amount equal to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingsuch Asset Sale Proceeds.
(d) The Borrower shallagrees that all available funds in the Collateral Account (except for Asset Sale Proceeds) shall be applied first, pro rata, to the amount of the Swing Line Loans and any Reimbursement Obligations then outstanding, next to the outstanding principal amount of the Revolving Loans, then (i) on any Business Day that any funds are on deposit in accordance with subsections 3.4(ethe Collateral Account and no Default or Event of Default has occurred and is continuing, the Borrower may direct the Administrative Agent to transfer to the Borrower's disbursement account funds up to the difference between the Borrowing Base as reflected in the most recent Borrowing Base Certificate and 100% of the remaining Secured Obligations and (ii) on any Business Day that any funds are on deposit in the Collateral Account and 3.4(f)a Default or Event of Default has occurred and is continuing, prepay the Term Borrower may direct the Administrative Agent to transfer to the Borrower's disbursement account funds up to the difference between the Borrowing Base as reflected in the most recent Borrowing Base Certificate and 105% of the remaining Secured Obligations. The Borrower shall utilize funds on deposit in the Collateral Account that are available to it pursuant to the terms hereof prior to requesting Revolving Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))be made hereunder.
Appears in 1 contract
Sources: Post Petition Credit Agreement (Service Merchandise Co Inc)
Optional and Mandatory Prepayments. (a) The Borrower may Subject to Section 3.02, ---------------------------------- the Company may, at any time and or from time to time by irrevocable notice to the Agent, not later than 11:00 a.m. (Houston time) (i) one Business Day prior to a prepayment of any CD Loan, (ii) three Business Days prior to a prepayment of any Offshore Loan, or (iii) on the Business Day of a prepayment of any Base Loan, ratably prepay the Term Loans made to it in whole or in part, subject to subsection 3.12, without premium in minimum amounts of $5,000,000 or penalty, upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent (any multiple of $1,000,000 in the case of Eurocurrency Loans), and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans)excess thereof. Such notice of prepayment shall specify the date and amount of prepayment and such prepayment, whether the prepayment is of Eurocurrency Loans to be prepaid are Revolving Loans or Swingline Loans, ABR the Type(s) of any Loans to be prepaid and the specific Borrowing or a combination thereofBorrowings pursuant to which such Loans were made. The Agent will promptly notify each Bank, andin the case of the prepayment of Revolving Loans, if a combination thereofor the Swingline Bank, in the principal amount allocable to each. Upon case of the prepayment of Swingline Loans, of its receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereofnotice, and of such Bank's Commitment Percentage of such prepayment, as applicable. If any such notice is givengiven by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to each such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entirety.
(b) If on Immediately upon the occurrence of any Specified Transaction or at any time prior to the date that is 180 days after the Closing Date date of consummation of such Specified Transaction, the Borrower or any Restricted Subsidiary Agent shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1)at the request of, thenand may with the consent of, the Majority Banks, in each casetheir sole and absolute discretion, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% by notice to the Company pursuant to Section 10.02, declare the outstanding principal amount of all Loans, together with accrued interest, amounts payable pursuant to Section 3.02 and all other amounts outstanding hereunder, to be immediately due and payable, whereupon such amounts shall immediately be paid by the Net Cash Proceeds thereof minus Company, and (ii) the portion of such Net Cash Proceeds applied (by notice to the extent Company pursuant to Section 10.02, declare the Borrower or any Restricted Subsidiary is required by the terms thereof) obligation of each Bank to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term make Loans, in each case with such prepayment to be made on or before including the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights obligation of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant Swingline Bank to this subsection 3.4(b) of all of the Term make Swingline Loans, termination of all Commitments hereunder and termination of the LC Facilitybe terminated, the Administrative Agent and the Lenders agree that the incurrence of whereupon such Indebtedness will not constitute a Default or Event of Defaultobligations shall be terminated immediately.
(c) On or before the date that is fifteen Business Days following of any increase in the 90th day total Commitments pursuant to Section 2.06, the Company shall prepay all Revolving Loans outstanding on such date, together with accrued interest thereon and amounts payable pursuant to Section 3.02; provided, however, that, notwithstanding the foregoing sentence, -------- if after giving effect to such an increase in the end total Commitments there are no new Banks hereunder and the Commitment Percentage of each fiscal year of Bank is unchanged from its Commitment Percentage immediately prior to such increase, then the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), Company shall not be required to prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during and related amounts outstanding on such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingdate.
(d) The Borrower shallAny mandatory prepayment under subsection (b) or (c) of this Section shall be made by the Company without presentment, demand, protest or other notice of any kind, except as provided in accordance with subsections 3.4(e) and 3.4(fsubsection (b), prepay all of which are expressly waived by the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))Company.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower Borrowers may at any time and from time to time prepay the Term Loans made to it them, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon notice by the Borrower Representative to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days’ irrevocable notice Days (or such shorter period as may be agreed by the Borrower to the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s irrevocable notice by or prior to 2:00 P.M., New York City time on the Borrower to the Administrative Agent date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower Representative (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million1,000,000; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made prior to the date that is six months after the Closing Date with the proceeds of Indebtedness incurred in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b).
(b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default[Reserved].
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing[Reserved].
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))[Reserved].
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower Borrowers may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower Representative to the Administrative Agent prior to 1:00 P.M., New York City time at least three (3) Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans), prior to 12:00 P.M., New York City time at least one Business Day (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of ABR Loans other than Swingline Loans) or same-day notice by the Borrower Representative to the Administrative Agent (in the case of Eurocurrency Loans), (x) Swingline Loans and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (y) Reimbursement Obligations outstanding in the case of ABR LoansDollars). Such notice shall specify be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the date and amount of prepayment and whether the prepayment is (i) of Eurocurrency Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans or ABR Loans Loans, or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 Subsection 4.12, the Revolving Credit Loans and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans Reimbursement Obligations pursuant to this subsection 3.4(aSection shall (unless the Parent Borrower otherwise directs) shall be applied applied, first, to payment of the respective installments Swingline Loans then outstanding, and second, to payment of principal the Revolving Credit Loans then outstanding, and third, to payment of such Term Loans in such order as the Borrower may directany Reimbursement Obligations then outstanding. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million; 1,000,000, as applicable, provided that, notwithstanding the foregoing, the Term Loans any Loan may be prepaid in their its entirety.
(b) If on or after the Closing Date the Borrower or On any Restricted Subsidiary shall incur Indebtedness for borrowed money day (other than Indebtedness permitted pursuant to subsection 7.1)during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, then, in each caseor for the account of, the Borrower shall prepay, in accordance with subsections 3.4(eBorrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) and (f)or the total Commitments at such time, the Term Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to (i) 100% such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the Net Cash Proceeds thereof minus L/C Obligations exceeds the Borrowing Base at such time (ii) based on the portion of such Net Cash Proceeds applied (Borrowing Base Certificate last delivered), the Borrowers shall pay to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders set forth in Section 8, except that in the case of a transaction resulting hereunder in a prepayment pursuant cash collateral account to this subsection 3.4(b) of all of be established by, and under the Term Loans, termination of all Commitments hereunder sole dominion and termination of the LC Facilitycontrol of, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of DefaultAgent.
(c) On or before the date that is fifteen Business Days following the 90th day after the end The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Credit Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower shallincurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with subsections 3.4(eSubsection 4.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans; provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and 3.4(f), prepay the Term Loans Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent required by subsection 7.4(b)(ii) (subject necessary to subsection 7.4(c))reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may may, at any time and from time to time time, prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, except as set forth in Section 2.6(c), upon at least three Working Days’ irrevocable notice (in the case of Eurodollar Loans), three Business Days’ irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Fixed Rate Loans), ) and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans). Such notice shall specify , in each case to the Lender, specifying the date and amount of prepayment prepayment, and whether the prepayment is of Eurocurrency Eurodollar Loans, Fixed Rate Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable by the Borrower on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples an aggregate principal amount of $1.0 million; provided that1,000,000 or a whole multiple of $500,000 in excess thereof and may only be made, notwithstanding the foregoingif after giving effect thereto, the Term Loans may be prepaid in their entiretySection 2.13(c) shall not have been contravened.
(b) If on or after (i) If, at any time, either (A) the Closing Date Asset Coverage Ratio of the Borrower shall be less than the Minimum Permitted Ratio, or any Restricted Subsidiary shall incur (B) the aggregate amount of all Indebtedness for borrowed money of the Borrower (other than Indebtedness permitted pursuant including, without limitation, the Loans made to subsection 7.1)the Borrower) then outstanding exceeds the limits provided in the Borrower’s Prospectus, then, in each casecase within thirty-five (35) calendar days thereafter, the Borrower shall prepay, in accordance with subsections 3.4(e) and repay Indebtedness (f), the Term Loans in an amount equal to (i) 100% which may or may not include repayment of the Net Cash Proceeds thereof minus (iiLoans made to the Borrower) the portion of such Net Cash Proceeds applied (to the extent necessary to ensure that the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis in compliance with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default5.10.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Sources: Credit Agreement Amendment (Kayne Anderson MLP Investment CO)
Optional and Mandatory Prepayments. (a) The Borrower Company may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon irrevocable notice delivered to the Administrative Agent at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Loans)Days prior thereto, and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans). Such which notice shall specify the date and amount of prepayment and whether the prepayment is of Eurocurrency Loansprepayment, ABR Loans or a combination thereof, and, provided that if a combination thereofLoan is prepaid on any day other than the last day of the Interest Period applicable thereto, the principal amount allocable Company shall be obligated to eachpay any amounts owing pursuant to Section 2.11; provided, further, that on or after the Initial Maturity Date, any prepayment shall be applied as provided in Section 2.5(c) below. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples an aggregate principal amount equal to the lesser of (A) $1.0 million; provided that1,000,000, notwithstanding or a whole multiple thereof and (B) the foregoing, aggregate unpaid principal amount of the Term Loans may be prepaid in their entiretyLoans.
(bi) If on or after If, subsequent to the Closing Date Date, the Borrower Company or any Restricted Subsidiary of its Subsidiaries shall incur issue the Take-Out Debt or any Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1Section 6.1(a)) or Capital Stock (other than shares of Capital Stock of a Subsidiary issued to the Company or any Subsidiary of the Company), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus shall be promptly applied toward the prepayment of the Loans as provided in Section 2.5(c) below.
(ii) If, subsequent to the portion Closing Date, the Company or any of its Subsidiaries shall be required to apply any Net Available Cash pursuant to Section 6.4, an amount equal to such Net Available Cash Proceeds shall be promptly applied (to toward the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth Loans as provided in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b2.5(c) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Defaultbelow.
(ciii) On or before If the date Loans would otherwise constitute “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Code, on the first Interest Payment Date that is fifteen Business Days following the 90th day occurs after the end of each fiscal year fifth anniversary of the Borrower ending on or after December 31, 2008 Closing Date (each, an the “ECF Payment AHYDO Prepayment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), Company shall be required to prepay the Term Loans in an amount a portion of each Loan then outstanding equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Mandatory Principal Prepayment Amount” (such prepayment, a “Mandatory Principal Prepayment”) minus (B) ). The “Mandatory Principal Prepayment Amount” means the portion of a Loan required to be redeemed to prevent such ECF Prepayment Amount applied (Loan from being treated as an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code. No partial prepayment of the Loans prior to the extent AHYDO Prepayment Date pursuant to any other provision of this Agreement will alter the Borrower or Company’s obligation to make the Mandatory Principal Prepayment with respect to any Restricted Subsidiary is required by Loans that remain outstanding on the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term LoansAHYDO Prepayment Date. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness Mandatory Principal Prepayment Amount shall not be deemed to include proceeds from determined by the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e) Company and 3.4(f), prepay the Term Loans provided to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))Administrative Agent in the form of an Officer’s Certificate on which the Administrative Agent may conclusively rely.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may may, at any time and from time to time time, prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penaltypenalty (except, with respect to Eurodollar Loans that are prepaid on a date other than the last day of the Interest Period with respect thereto, as provided under subsection 4.11), upon (i) in the case of prepayments of Eurodollar Loans, at least three Business Days’ ' irrevocable notice (which notice may be given by the Borrower telephone (to be promptly confirmed in writing, including by facsimile) to the Administrative Agent and (ii) in the case of Eurocurrency prepayments of ABR Loans (other than Swing Line Loans), and at least one Business Day’s irrevocable notice (which notice may be given by the Borrower telephone (to be promptly confirmed in writing, including by facsimile)) to the Administrative Agent (prior to 11:30 A.M., Boston time, on the date of such prepayment, in the each case of ABR Loans). Such notice shall specify specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and 4.11 in connection therewith and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Partial prepayments Amounts prepaid on account of the Term Loans pursuant to this subsection 3.4(a) shall may not be reborrowed and will be applied to the respective installments thereof in the scheduled order of principal of such Term Loans in such order as the Borrower may directmaturity thereof. Partial prepayments pursuant to under this subsection 3.4(a4.1(a) shall be be, in multiples the case of Eurodollar Loans, in an aggregate principal amount of $1.0 million; provided that1,000,000 or a whole multiple of $1,000,000 in excess thereof and in the case of ABR Loans, notwithstanding the foregoing, the Term Loans may be prepaid in their entiretyan aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) If on or after the Closing Date the Borrower or If, at any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each casetime, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), Aggregate Outstanding Extensions of Credit at such time exceed the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of Borrowing Base at such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”)time, the Borrower shall, without notice or demand, immediately repay Swing Line Loans then outstanding and/or, after the Swing Line Loans have been paid in accordance with subsections 3.4(e) and (f)full, prepay the Term Revolving Loans in an aggregate principal amount equal to (A) (x) the ECF Percentage lesser of (i) the Borrower’s Excess Cash Flow for amount of such excess and (ii) the aggregate principal amount of Swing Line Loans and Revolving Loans then outstanding, together with interest accrued to the date of such payment or prepayment on the principal so prepaid and any amounts payable under subsection 4.11 in connection therewith. To the extent that after giving effect to any prepayment of Swing Line Loans and Revolving Loans required by the preceding sentence, the Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time, the Borrower shall, without notice or demand, immediately deposit in the Collateral Account upon terms reasonably satisfactory to the Administrative Agent an amount equal to the lesser of (i) the aggregate then outstanding L/C Obligations and (ii) the amount of such remaining excess. The Administrative Agent shall apply any cash deposited in the Collateral Account (to the extent thereof) to pay any Reimbursement Obligations which become due thereafter. To the extent that after giving effect to any prepayment of the Revolving Loans and cash deposits required by the preceding fiscal year minus sentences, the Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time, the Borrower shall, without notice or demand, immediately repay the Term Loans in the scheduled order of maturity thereof in an aggregate principal amount equal to the lesser of (i) the amount of such excess and (ii) the aggregate principal amount of Term Loans then outstanding, together with interest accrued to the date of such payment or prepayment on the principal so prepaid pursuant to subsection 3.4(a), and any amounts payable under subsection 4.11 in connection therewith. The Borrower shall also prepay the Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded required to comply with proceeds from the incurrence of long-term Indebtedness, minus subsection 3.16.
(yc) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (The Borrower shall deposit in the case Collateral Account or a Depositary Account (i) except as otherwise provided in subsection 5.1(f) of this clause (y)the Master Security Agreement, without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (all Asset Sale Proceeds within three business days after the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent receipt by the Borrower or any Restricted Subsidiary is thereof, and (ii) all other amounts required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingMaster Security Agreement.
(d) The Borrower shallagrees that, prior to the delivery of a Notice of Acceleration (as defined in the Master Security Agreement), all available funds in the Collateral Account shall be applied first, to pay amounts due and payable under this Agreement and the other Loan Documents (other than ABR Loans and Eurodollar Loans), including, without limitation, interest and fees then due, second, pro rata, to the amount of the Swing Line Loans and any Reimbursement Obligations then outstanding, third to the outstanding principal amount of the Revolving Loans, fourth, to any principal amounts then due on account of the Term Loans, and fifth, after all amounts payable under clauses first through and including fourth have been paid, (i) on any Business Day that no Default or Event of Default has occurred and is continuing, the Borrower may direct the Administrative Agent to transfer to the Borrower's disbursement account the balance of the available funds, or (ii) on any Business Day that a Default or Event of Default has occurred and is continuing, to cash collateralize Letters of Credit outstanding in an amount equal to 103% of the maximum amount available to be drawn under such Letters of Credit and thereafter, the Borrower may direct the Administrative Agent to transfer to the Borrower's disbursement account the balance of the available funds. The Borrower shall utilize funds on deposit in, or transferred from, the Collateral Account that are available to it pursuant to the terms hereof (other than funds the Borrower is entitled to retain in accordance with subsections 3.4(ethe provisions of subsection 5.1(f) and 3.4(f), prepay of the Term Master Security Agreement) prior to requesting Revolving Loans to be made hereunder. All amounts from the extent required by subsection 7.4(b)(ii) Collateral Account to be applied to ABR Loans and Eurodollar Loans shall be applied first to reduce outstanding ABR Loans, and second, to cash collateralize, or at the Borrower's option reduce, outstanding Eurodollar Loans until the expiration of the Interest Period therefor (subject with the Borrower being obligated to subsection 7.4(cpay any breakage fees associated with a reduction of Eurodollar Loans)). All amounts in the Collateral Account shall be applied or released as described above as of the day immediately following receipt; in that regard the Borrower shall indemnify Fleet, the Administrative Agent and the Lenders against, and shall pay on demand, the amount of any provisional items credited to the Credit Agreement Obligations or released to the Borrower which are not paid.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower Company and each Designated Subsidiary may at any time and from time to time prepay the Term Loans made to it then outstanding, in whole or in part, subject to subsection 3.12, without premium or penalty, provided, however, that if the Company or any Designated Subsidi-ary prepays any Eurodollar Loans on any day other than the last day the Interest Period therefor, the Company or such Designated Subsidiary shall concurrently pay any amounts due under subsection 2.16 incurred in connection therewith. Optional prepayments pursuant to this subsec-tion 2.8(a) shall be made upon at least three Business Working Days’ ' prior irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s 's prior irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Prime Rate Loans). Such notice shall specify , specifying (i) the date and amount of prepayment and such prepayment, (ii) whether the prepayment is of Eurocurrency Eurodollar Loans, ABR Prime Rate Loans or a combination thereof, and, if of a combination thereof, the principal amount of prepayment allocable to each. Upon each Type and (iii) in the receipt case of any such notice Eurodollar Loans, the Administrative Agent shall promptly notify each affected Lender thereofInterest Periods affected. If any such notice is given, the amount specified in Company or the Designated Subsidiary involved will make the prepayment spe-cified therein, and such notice prepayment shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments Each prepayment of Term the Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(aparagraph (a) shall be in multiples an amount equal to $5,000,0000 or any whole multiple of $1.0 million; 1,000,000 in excess thereof or the amount of all Loans then outstanding, provided that prepayments of Eurodollar Loans pursuant to this paragraph (a) shall be made in such a manner that, notwithstanding after giving effect to such prepayments, no Eurodollar Loans having the foregoing, the Term Loans may same Interest Period shall be prepaid maintained in their entiretyan amount less than $1,000,000.
(b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of DefaultIntentionally omitted.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Sources: Credit Agreement (Nortek Inc)
Optional and Mandatory Prepayments. (a) The Subject to Section ---------------------------------- 2.13, the Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ by irrevocable notice by the Borrower to the Administrative Agent (by 10:00 a.m., New York City time, on the same Business Day in the case of Eurocurrency Alternate Base Rate Loans), and at least one three Business Day’s Days' irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Eurodollar Loans). Such notice shall specify , specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to eachprepayment. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the Borrower shall make such prepayment, and the payment amount specified in such notice shall be due and payable payable, on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans shall be in an aggregate principal amount equal to the lesser of (A) (I) $2,000,000, or a whole multiple of $100,000 in excess thereof with respect to Eurodollar Loans or (II) $1,000,000, or a whole multiple of $100,000 in excess thereof with respect to Alternate Base Rate Loans and (B) the aggregate unpaid principal amount of the Loans.
(a) If on any date the Agent or the Borrower shall receive, with respect to any Property, any payment in respect of excess wear and tear pursuant to this subsection 3.4(aSection 21.3 of the Lease (a "Wear and Tear Payment") or any Net Sales --------------------- Proceeds Shortfall pursuant to Section 21.3 of the Lease, such payment shall be applied to prepay the respective installments of principal of Loans on such Term Loans date in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entiretyaccordance with Section 8.1(b)(vi).
(bi) If On any date on which the Lessee is obligated to pay the Lessor an amount equal to (x) the Termination Value of any Property in connection with the delivery of a Termination Notice or after (y) the Closing Termination Value of any Property in connection with the exercise of a Purchase Option or Maturity Date Purchase Option, such amount shall be applied to prepay the Borrower or Loans on such date in accordance with Section 8.1(b)(ii), and (ii) on any Restricted Subsidiary date on which any Property shall incur Indebtedness for borrowed money (other than Indebtedness permitted have been sold pursuant to subsection 7.1), then, in each caseSection 21 of the Lease, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), prepay the Term Loans on such date in an amount equal to the proceeds of such sale (inet of costs and expenses described in Section 21.2(i) 100% of the Net Cash Proceeds thereof minus (iiLease) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis in accordance with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default8.1(b)(iii).
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year Each prepayment of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a)Section 2.4(b) or 2.4(c) shall be allocated to reduce the Tranche A/B Property Cost of the affected Property. Each prepayment of the Loans pursuant to Section 2.5(a) shall be allocated to reduce the respective Tranche A/B Property Costs of all Properties, and any Revolving Loans prepaid pro rata according to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end Tranche A/B Property Costs of such fiscal year and on or prior Properties --- ---- immediately before giving effect to such ECF Payment Date, excluding prepayments funded with proceeds from prepayment. Any amounts applied to reduce the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication Tranche A/B Property Cost of any amount thereof previously deducted in any calculation Construction Period Property pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
paragraph (d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay shall also be applied to reduce the Term Loans Tranche A/B Construction Property Cost of such Property until such Tranche A/B Construction Property Cost has been reduced to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))zero.
Appears in 1 contract
Sources: Credit Agreement (Sailors Inc)
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s irrevocable notice by or prior to 2:00 P.M., New York City time on the Borrower to the Administrative Agent date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non- occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in a minimum amount of $1,000,000 and integral multiples of $1.0 million500,000 in excess thereof; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety.
(b. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) If on or made prior to the date that is six months after the Closing Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured term loan financing incurred in a Repricing Transaction shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, be accompanied by the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% payment of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is fee required by the terms thereofSubsection 4.5(b).
(b) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default[Reserved].
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing[Reserved].
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))[Reserved].
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it it, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 1:00 P.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and or prior to 1:00 P.M., New York City time at least one Business Day’s irrevocable notice by the Borrower Day prior to the Administrative Agent date of prepayment (in the case of ABR Loans). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million500,000; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made on or prior to the second anniversary of the Closing Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b).
(bi) If The Borrower shall, in accordance with Subsection 4.4(c), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date Date, the Borrower or any of its Restricted Subsidiary Subsidiaries shall incur Incur Indebtedness for borrowed money (other than excluding Indebtedness permitted pursuant to subsection 7.1Subsection 8.1), then, in each case, the Borrower shall prepayshall, in accordance with subsections 3.4(e) and (fSubsection 4.4(c), prepay the Term Loans in an amount equal to (i) 100100.0% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights notice given to each Lender of the Administrative Agent Prepayment Date, as contemplated by Subsection 4.4(d), and (iii) the Lenders set forth Borrower shall, in Section 8accordance with Subsection 4.4(c), except that in prepay the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all Term Loans within 120 days following the last day of the Term Loans, termination of all Commitments hereunder and termination of immediately preceding Fiscal Year (commencing with the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower Fiscal Year ending on or after December 31about November 3, 2008 2013) (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (AA)(1) 75.0% (xas may be adjusted pursuant to the last proviso of this clause (iii)) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year such Fiscal Year minus (ii2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to subsection 3.4(aSubsection 4.4(a) during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to Subsection 4.4(a) during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to Subsection 4.4(h) or the other clauses of this Subsection 4.4(b) shall be so designated), (y) any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilitySenior ABL Facility during such Fiscal Year (which, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtednessany event, minus shall not include any designated prepayment pursuant to clause (yz) below), and (z) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilitySenior ABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(b) shall be so designated), in each case since the end of such fiscal year and on or prior to such ECF Payment Datecase, excluding prepayments funded with proceeds from the incurrence Incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Dateincluding a revolving credit facility) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to (x) 50% if the Consolidated Total Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 2.50:1.00 and equal to or greater than 2.25:1.00, (y) 25% if the Consolidated Total Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 2.25:1.00 and equal to or greater than 2.00:1.00 and (z) 0% if the Consolidated Total Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 2.00:1.00. For Nothing in this Subsection 4.4(b) shall limit the avoidance rights of doubt, for purposes the Agents and the Lenders set forth in Section 9.
(c) Subject to the last sentence of this subsection 3.4(cSubsection 4.4(d) and Subsection 4.4(g), proceeds from each prepayment of Term Loans pursuant to Subsection 4.4(b) shall be allocated pro rata among the Incurrence Initial Term Loans, the Incremental Term Loans and the Extended Term Loans; provided, that at the request of long-term Indebtedness the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall not have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to Subsection 4.4(a) and (b) shall be deemed applied within each Tranche of Term Loans to include proceeds from the Incurrence respective installments of Indebtedness under principal thereof in the Revolving Facilitymanner directed by the Borrower (or, any Special Purpose Financing or any other revolving credit or working capital financingif no such direction is given, in direct order of maturity).
(d) The Borrower shallshall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Subsection 4.4(b)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to Subsection 4.4(b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(i), on or before the date specified in Subsection 8.4(b) and (ii) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(ii) or (iii), on or before the date specified in Subsection 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Subsection 4.4(d)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness, including any Junior Debt, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement.
(e) Amounts prepaid on account of Term Loans pursuant to Subsection 4.4(a), (b) or (h) may not be reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(a) or (b) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid), to be held as security for the obligations of the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by the Borrower) or (ii) make a prepayment of the Term Loans in accordance with subsections 3.4(eSubsection 4.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid. In addition, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be applied to prepay Term Loans pursuant to Subsection 4.4(b) would result in material adverse tax consequences to the Borrower or any of its Restricted Subsidiaries, then the Borrower shall not be required to prepay such amounts as required thereunder; provided that the Borrower shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without incurring material adverse tax consequences.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and 3.4(fthe Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to Subsections 2.6 and 2.8, as applicable, or pursuant to any other credit or letter of credit facility added pursuant to Subsection 2.6 or 11.1(e).
(h) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
(i) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Subsection 4.4(h); provided that the Borrower shall not initiate any action under this Subsection 4.4(h) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date or (2) at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender. Each Lender participating in any Discounted Term Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent required permitted by subsection 7.4(b)(iilaw, any claims such Lender may have against the Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Discounted Term Loan Prepayment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders. Any Term Loans prepaid pursuant to this Subsection 4.4(h) (subject to subsection 7.4(c))shall be immediately and automatically cancelled.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Any Borrower may at any time and from time to time prepay any Loans (other than, to the Term extent that any other Loans made to it are then outstanding, the Unsecured Supplemental Loans), in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ ' irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Eurodollar Loans or Domestic Sterling Loans), and at least ) or one Business Day’s 's irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans or Sterling Base Rate Loans). Such notice shall specify the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 10.13 and (except in the case of prepayments of the Domestic Revolving Credit Loans or the UK Revolving Credit Loans which are not accompanied by a permanent reduction of the Domestic Revolving Credit Commitments or the UK Revolving Credit Commitments, as the case may be) accrued interest to such date on the amount prepaid. Partial prepayments of the Domestic Term Loans pursuant to this subsection 3.4(a) and the UK Term Loans shall be applied pro rata to the respective remaining installments of principal thereof. Amounts prepaid on account of such the Domestic Term Loans, the UK Term Loans in such order as and the Borrower Supplemental Loans may directnot be reborrowed. Partial prepayments pursuant to under this subsection 3.4(a) shall be in multiples an aggregate principal amount of $1.0 million; provided that, notwithstanding 500,000 or a whole multiple of $100,000 in excess thereof (in the foregoing, case of Domestic Loans) or (pound)350,000 or a whole multiple of (pound)100,000 in excess thereof (in the Term Loans may be prepaid in their entiretycase of UK Loans).
(b) If on or after As promptly as practicable following the Closing Date occurrence of any Prepayment Event (and, in any event, within one Business Day following the Borrower receipt by the Company or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of its Subsidiaries of the Net Cash Proceeds thereof minus therefrom), the Borrowers shall prepay the Loans (iiin the manner, and to the extent, specified by subsection 10.2(f)) by the portion amount equal to 100% of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days Within 90 days following the 90th last day after the end of each fiscal year of the Borrower Company and, in any event, not later than the date upon which the financial statements with respect to such fiscal year are delivered to the Agent pursuant to subsection 13.4(a) (commencing with the fiscal year ending on or after December 31, 2008 (each, an “ECF Payment Date”1997), the Borrower shallBorrowers shall prepay Loans (in the manner, in accordance with subsections 3.4(eand to the extent, specified by subsection 10.2(f)) and (f), prepay by the Term Loans in an amount equal to (A) (x) the ECF Percentage 50% of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from year; provided, however, that no such prepayment shall be required to be so made if the incurrence of long-term Indebtedness, minus Leverage Ratio (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, calculated in accordance with subsections 3.4(ethe provisions of subsection 14.16) and 3.4(f), prepay on the Term Loans last day of the fiscal year in respect of which such prepayment would otherwise be required was less than or equal to the extent required by subsection 7.4(b)(ii) (subject 3.00 to subsection 7.4(c))1.00.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Remington Products Co LLC)
Optional and Mandatory Prepayments. (a) The Borrower Borrowers may at any time and from time to time prepay the Term Loans made to it them, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon notice by the Borrower Representative to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days’ irrevocable notice Days (or such shorter period as may be agreed by the Borrower to the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Term SOFR Loans), and at least one Business Day’s irrevocable notice by or prior to 2:00 P.M., New York City time on the Borrower to the Administrative Agent date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Term SOFR Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower Representative (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Term SOFR Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million1,000,000; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made prior to the date that is twelve months after the Closing Date in an amount equal to the Net Cash Proceeds received by the Parent Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing incurred in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b). Each prepayment of Tranche B Term Loan pursuant to this Subsection 4.4(a) made prior to the date that is six months after the Second Amendment Effective Date in an amount equal to the Net Cash Proceeds received by the Borrowers or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing incurred in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b).
(b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default[Reserved].
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing[Reserved].
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))[Reserved].
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it in whole or in part, subject to subsection 3.12, without premium or penaltypenalty (except as set forth in subsections 3.4(g) and 3.11 below), upon at least three Business Days’ irrevocable (except as otherwise provided below) notice (which notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time) by the Borrower to the Administrative Agent (in the case of Eurocurrency Eurodollar Loans), and ) or at least one Business Day’s irrevocable notice (which notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time) by the Borrower to the Administrative Agent (in the case of ABR Loans). Such notice shall specify , specifying, in the case of any prepayment of Loans, the date and amount of prepayment and whether the prepayment is of Eurocurrency Eurodollar Loans, ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with any amounts payable pursuant to subsections 3.4(g) and (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 3.11 and accrued interest to such date on the amount prepaid. Partial prepayments of Term the Loans pursuant to this subsection 3.4(a) shall be applied to the respective remaining installments of principal of such Term Loans in such order thereof as directed by the Borrower may directBorrower. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples an aggregate principal amount of $1.0 million5,000,000 or a whole multiple of $1,000,000 in excess thereof; provided that, notwithstanding the foregoing, the Term Loans any Loan may be prepaid in their its entirety. Notwithstanding anything to the contrary contained in this Agreement, the Borrower may rescind any notice of prepayment under this subsection 3.4
(a) if such prepayment would have resulted from a refinancing (and payment in full) of the Loans, which refinancing shall not be consummated or otherwise shall be delayed.
(b) If on or after the Closing Date Date:
(i) the Borrower or any Restricted Subsidiary of its Subsidiaries shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.17.2) pursuant to a public offering or private placement or otherwise,
(ii) the Borrower or any of its Subsidiaries shall make an Asset Sale (other than pursuant to clauses (i), (ii), (iii), (iv), (vi), (ix), (x), (xi) and (xii) of subsection 7.6(a)),
(iii) a Recovery Event occurs, or
(iv) a Public Equity Issuance occurs, then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (fthis subsection 3.4(b), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).to:
Appears in 1 contract
Sources: Credit Agreement (Sirva Inc)
Optional and Mandatory Prepayments. (a) The Borrower may Subject to Section 3.02, the ------------------------------------ Company may, at any time and or from time to time by irrevocable notice to the Agent, not later than 11:00 a.m. (Houston time) (i) one Business Day prior to a prepayment of any CD Loan, (ii) three Business Days prior to a prepayment of any Offshore Loan, or (iii) on the Business Day of a prepayment of any Base Loan, ratably prepay the Term Loans made to it in whole or in part, subject to subsection 3.12, without premium in minimum amounts of $5,000,000 or penalty, upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent (any multiple of $1,000,000 in the case of Eurocurrency Loans), and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans)excess thereof. Such notice of prepayment shall specify the date and amount of prepayment and such prepayment, whether the prepayment is of Eurocurrency Loans to be prepaid are Revolving Loans or Swingline Loans, ABR the Type(s) of any Loans to be prepaid and the specific Borrowing or a combination thereofBorrowings pursuant to which such Loans were made. The Agent will promptly notify each Bank, andin the case of the prepayment of Revolving Loans, if a combination thereofor the Swingline Bank, in the principal amount allocable to each. Upon case of the prepayment of Swingline Loans, of its receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereofnotice, and of such Bank's Commitment Percentage of such prepayment, as applicable. If any such notice is givengiven by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to each such date on the amount of Offshore Loans prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entirety.
(b) If on Immediately upon the occurrence of any Specified Transaction or at any time prior to the date that is 180 days after the Closing Date date of consummation of such Specified Transaction, the Borrower or any Restricted Subsidiary Agent shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1)at the request of, thenand may with the consent of, the Majority Banks, in each casetheir sole and absolute discretion, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% by notice to the Company pursuant to Section 10.02, declare the outstanding principal amount of all Loans, together with accrued interest, amounts payable pursuant to Section 3.02 and all other amounts outstanding hereunder, to be immediately due and payable, whereupon such amounts shall immediately be paid by the Net Cash Proceeds thereof minus Company, and (ii) the portion of such Net Cash Proceeds applied (by notice to the extent Company pursuant to Section 10.02, declare the Borrower or any Restricted Subsidiary is required by the terms thereof) obligation of each Bank to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term make Loans, in each case with such prepayment to be made on or before including the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights obligation of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant Swingline Bank to this subsection 3.4(b) of all of the Term make Swingline Loans, termination of all Commitments hereunder and termination of the LC Facilitybe terminated, the Administrative Agent and the Lenders agree that the incurrence of whereupon such Indebtedness will not constitute a Default or Event of Defaultobligations shall be terminated immediately.
(c) On or before the date that is fifteen Business Days following of any increase in the 90th day total Commitments pursuant to Section 2.06, the Company shall prepay all Revolving Loans outstanding on such date, together with accrued interest thereon and amounts payable pursuant to Section 3.02; provided, however, that, notwithstanding the foregoing sentence, if after giving effect to such an increase in the end total Commitments there are no new Banks hereunder and the Commitment Percentage of each fiscal year of Bank is unchanged from its Commitment Percentage immediately prior to such increase, then the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), Company shall not be required to prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during and related amounts outstanding on such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingdate.
(d) The Borrower shallAny mandatory prepayment under subsection (b) or (c) of this Section shall be made by the Company without presentment, demand, protest or other notice of any kind, except as provided in accordance with subsections 3.4(e) and 3.4(fsubsection (b), prepay all of which are expressly waived by the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))Company.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any time and Subject to Section 3.09 hereof, the Company shall have the right to prepay Loans from time to time prepay the Term Loans made to it in whole or in part, subject to subsection 3.12time, without premium or penalty, upon subject to receipt by the Lender of written notice from the Company not later than 10 a.m. New York time at least three (3) Business Days’ irrevocable notice by the Borrower Days prior to the Administrative Agent date of such prepayment, which notice shall be irrevocable and shall specify (i) the amount, Class and Type of each Loan to be prepaid, and (ii) the date of such prepayment which shall be a Business Day (and the amount so specified shall then become due and payable hereunder on such date, together with all interest accrued thereon to, but excluding, such date). Notwithstanding the foregoing to the contrary, (A) a Eurodollar Loan may be prepaid only on the last day of the then applicable Interest Period for such Eurodollar Loan, (B) each partial prepayment of the Loans shall be in an amount at least equal to $100,000 or in multiples of $100,000 in excess thereof (prepayments of Loans of different Classes or Types or, in the case of Eurocurrency Eurodollar Loans, having different Interest Periods at the same time hereunder shall be deemed separate prepayments for purposes of the foregoing, one for each Class, Type or Interest Period), and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans). Such notice shall specify the date and amount of C) each prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to against the respective installments of principal of such Term Loans as provided in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(aSection 3.04(e) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entiretyhereof.
(b) If on or after any Capital Stock of the Closing Date Company is sold by the Borrower Company in a Public Offering, then concurrently with the receipt by the Company of Net Proceeds from such Public Offering, the Company shall be required to prepay the Loans in full.
(c) Concurrently with the receipt by the Company or any Restricted Subsidiary shall incur Indebtedness for borrowed money of Net Proceeds from any of the transactions described below (other than Indebtedness to the extent permitted pursuant to subsection 7.1by the Lender), then, the Company shall make a prepayment of the Loans as follows (in each case, to be applied against the Borrower shall prepayLoans as provided in Section 3.04(e) hereof):
28 34 (i) If such Net Proceeds arise from the sale, in accordance with subsections 3.4(elease, assignment, exchange or other disposition of any assets of the Company or any Subsidiary (including, without limitation, as a result of any casualty or condemnation but not including sales or dispositions of assets permitted pursuant to Section 7.03(ii) and (fhereof), the Term Company shall make a prepayment of the Loans in an amount equal to (i) 10050% of the Net Cash Proceeds thereof minus (ii) the portion amount of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Sources: Credit Agreement (Caminus Corp)
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penaltypenalty (other than any amounts payable pursuant to subsection 3.11 if such prepayment is of EurodollarSOFR Loans and is made on a day other than the last day of the Interest Period with respect thereto), upon at least three U.S. Government Securities Business Days’ irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Loans)Agent, and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans). Such notice shall specify specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency EurodollarSOFR Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the principal amount allocable to each; provided further that such notice delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayments of Loans shall be in an aggregate principal amount of at least $1,000,000 or an integral multiple of $100,000 in excess thereof.
(b) The Borrower may at any time and from time to time prepay, together with without premium or penalty (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 3.11 if such prepayment is of Multicurrency Loans and accrued interest is made on a day other than the last day of the Interest Period with respect thereto), the Multicurrency Loans, in whole or in part, upon at least three Business Days’ irrevocable notice to the Administrative Agent specifying the date and amount of prepayment; provided further that such date notice delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice, the Administrative Agent shall promptly notify each Multicurrency Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the amount prepaiddate specified therein. Partial prepayments of Term Multicurrency Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples an aggregate principal amount the Dollar Equivalent of which is at least $1,000,000 or an integral multiple of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid 100,000 in their entirety.
(b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms excess thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before If at any time during the date that is fifteen Business Days following Commitment Period, for any reason the 90th day after Aggregate Total Outstandings of all Lenders exceed the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”)Aggregate Revolving Credit Commitments then in effect, the Borrower shall, in accordance with subsections 3.4(e) and (f)without notice or demand, immediately prepay the Term Revolving Credit Loans and/or the Multicurrency Loans in an amount equal to amounts such that the sum of (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilityCredit Loans so prepaid and (B) the Dollar Equivalent of the aggregate principal amount of the Multicurrency Loans so prepaid, in each case equals or exceeds the amount of such excess.
(i) If, at any time during such fiscal year excluding prepayments funded with proceeds from the incurrence Commitment Period, for any reason either (1) the Aggregate Total Outstandings of long-term Indebtednessall Multicurrency Lenders exceed the Aggregate Revolving Credit Commitments of the Multicurrency Lenders by 5% or more, minus (2) the Aggregate Multicurrency Outstandings exceed the aggregate Multicurrency Commitments by 5% or more, (3) the sum of the Aggregate Multicurrency Outstandings plus the Dollar Equivalent of (x) the aggregate outstanding principal amount of Local Currency Loans and (y) the aggregate principal outstanding amount of Term Loans prepaid pursuant L/C Obligations attributable to subsection 3.4(a)Letters of Credit denominated in currencies other than Dollars, and any Revolving Loans prepaid exceeds the aggregate Multicurrency Commitments by 5% or more or (4) the Dollar Equivalent of all L/C Obligations attributable to Letters of Credit denominated in currencies other than Dollars exceeds, in the extent accompanied aggregate, the Multicurrency Sublimit by a corresponding permanent commitment reduction under 5% or more, the Borrower shall, without notice or demand, immediately prepay the Revolving Facility, Credit Loans and/or the Multicurrency Loans and/or Local Currency Loans and/or cash collateralize the L/C Obligations in each case since the end amounts such that any such excess is eliminated.
(ii) Each prepayment of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation Loans pursuant to this subsection 3.4(c3.1(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required shall be accompanied by the terms thereofpayment of unpaid accrued interest on the principal amount so prepaid and any amounts payable under subsection 3.11 in connection with such prepayment. - 44 -
(iii) Notwithstanding the foregoing, mandatory prepayments of Revolving Credit Loans or Multicurrency Loans that would otherwise be required pursuant to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds 3.1(c) solely as a result of fluctuations in Exchange Rates from time to time shall only be required to be made pursuant to this subsection 3.1(c) on the Incurrence last Business Day of long-term Indebtedness shall not be deemed to include proceeds from each month on the Incurrence basis of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingExchange Rate in effect on such Business Day.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any ---------------------------------- time and from time to time prepay the Term Revolving Credit Loans made to it and the Swing Line Loans, in whole or in part, subject to subsection 3.12, without premium or penaltypenalty (other than amounts required to be paid pursuant to subsection 4.13 in connection with such prepayment), upon at least three Business Days’ ' irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Eurodollar Loans), ) and at least one Business Day’s 's irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Base Rate Loans). Such notice shall specify , specifying the date and amount of prepayment and whether the prepayment is (i) of Eurocurrency Revolving Credit Loans or Swing Line Loans, ABR or a combination thereof, and (ii) of Eurodollar Loans, Base Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 4.13 and accrued interest to such date on the amount prepaid. Partial Unless specified otherwise in such notice, partial prepayments of Term the Loans pursuant to this subsection 3.4(a4.4(a) shall be applied first, to the respective installments of principal of such Term pay Swing Line Loans in such order as the Borrower may directthen outstanding and second, to pay ----- ------ Revolving Credit Loans then outstanding. Partial prepayments pursuant to this subsection 3.4(a) of the Revolving Credit Loans shall be in multiples an aggregate principal amount of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid 2,500,000 or a whole multiple of $500,000 in their entiretyexcess thereof.
(b) If on If, at any time during the Commitment Period, the Total Aggregate Outstandings of all Lenders exceed the lesser of (i) the Borrowing Base then in effect and (ii) the aggregate Commitments then in effect (whether as result of a reduction in the Commitments pursuant to subsection 2.9(b), subsection 4.4(c) or otherwise), the Borrower shall, without notice or demand, immediately (in the case of clause (ii) above) or within three Business Days (in the case of clause
(i) above), repay the Revolving Credit Loans and the Swing Line Loans and any then outstanding Reimbursement Obligations in an aggregate principal amount equal to such excess, together with interest accrued to the date of such payment and any amounts payable under subsection 4.13. Such payments shall be applied first to pay Swing Line Loans then outstanding, second to pay any Reimbursement ----- ------ Obligations then outstanding and third to pay Revolving Credit Loans then ----- outstanding. To the extent that after giving effect to any repayment of the Closing Date Loans and the Reimbursement Obligations required by the preceding sentence, the Total Aggregate Outstandings of all Lenders exceed the lesser of (i) the Borrowing Base then in effect and (ii) the aggregate Commitments then in effect, the Borrower shall, without notice or demand, immediately cash collateralize first the then outstanding L/C Obligations and second the then outstanding CAF ----- ------ Advances, in an aggregate amount equal to such excess upon terms reasonably satisfactory to the Administrative Agent.
(i) Unless otherwise agreed in writing by the Aggregate Majority Lenders, if at any time Holdings or any of its Subsidiaries (other than the Canadian Borrower or any Restricted Subsidiary of its Subsidiaries) shall (A) incur Indebtedness for borrowed money (including, without limitation, any Subordinated Indebtedness permitted by subsection 8.2(i) but excluding any other than Indebtedness permitted by subsection 8.2) pursuant to a public offering or private placement or otherwise or (B) sell or issue shares of its Capital Stock (except for shares of Capital Stock of Holdings or an Additional Subsidiary issued or sold to one or more Permitted Equity Purchasers to the extent such sale or issuance is permitted pursuant to subsection 7.1this Agreement and the Holdings Guarantee), then, in each case, then the Borrower Commitments shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in be permanently reduced by an amount equal to (i1) 100% of the Net Cash Proceeds thereof minus (iiin the case of clause (A) above) or (2) the portion U.S. Prepayment Percentage (as in effect on the date of such sale or issuance) of 66-2/3% of the Net Cash Proceeds applied thereof (to in the extent the Borrower or any Restricted Subsidiary is required by the terms thereofcase of clause (B) to prepayabove), repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment reductions to be made effective on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(cii) On or before Unless otherwise agreed in writing by the date that is fifteen Business Days following the 90th day after the end of each fiscal year of Majority Lenders, if at any time the Borrower ending on or after December 31, 2008 any of its Subsidiaries (each, other than the Canadian Borrower or any of its Subsidiaries) shall make an “ECF Payment Date”Asset Sale pursuant to subsection 8.6(g), the Borrower shall, in accordance with subsections 3.4(e) shall repay the Revolving Credit Loans and (f), prepay the Term Swing Line Loans and any then outstanding Reimbursement Obligations in an aggregate amount equal to (A) (x) 100% of the ECF Percentage Net Cash Proceeds thereof, together with accrued interest on such Loans and Reimbursement Obligations to the date of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), such payment and any Revolving Loans prepaid amounts payable under subsection 4.13, such payments to be made promptly upon the receipt of such Net Cash Proceeds and to be applied to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence Extensions of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (Credit in the case of this clause (ysame order as that specified in subsection 4.4(b), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shallshall prepay all Swing Line Loans then outstanding simultaneously with each borrowing of Revolving Credit Loans, and may prepay (without premium or penalty) any outstanding Swing Line Loans upon at least one Business Day's notice to the Administrative Agent.
(e) Except as otherwise specified by the Borrower in accordance with subsections 3.4(e) and 3.4(fa notice to the Administrative Agent pursuant to subsection 4.4(a), prepay the Term prepayments of Revolving Credit Loans pursuant to the extent required by this subsection 7.4(b)(ii) (subject 4.4 shall be applied first to subsection 7.4(c))Base Rate Loans then outstanding and thereafter to Eurodollar Loans then outstanding.
Appears in 1 contract
Sources: Credit Agreement (CDW Holding Corp)
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it in whole or in part, subject to subsection 3.12, without premium or penaltypenalty (except as provided in subsection 3.4(g)), upon at least three Business Days’ irrevocable written notice (in substantially the form attached hereto as Exhibit E (or such other form reasonably acceptable to the Administrative Agent)) by the Borrower to the Administrative Agent (x) prior to 1:00 P.M., New York City time at least three U.S. Government Securities Business Days (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency SOFR Loans), and or (y) prior to 1:00 P.M., New York City time at least one two Business Day’s irrevocable notice by the Borrower Days prior to the Administrative Agent date of prepayment (in the case of ABR Loans). Such notice shall specify the date and amount of prepayment and prepayment, whether the prepayment is of Eurocurrency SOFR Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to each, the applicable Tranche being repaid and, if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked or extended by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. If any such notice is givengiven and is not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied on a pro rata basis to the respective installments of principal of such Term Loans in such the reverse order as the Borrower may directof maturity. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the any Tranche of Term Loans may be prepaid in their its entirety. Each prepayment of Initial Term Loans and Delayed Draw Term Loans pursuant to this subsection 3.4(a) made on or prior to the third anniversary after the Closing Date shall be accompanied by the payment of the premium required by subsection 3.4(g).
(b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, prepay in accordance with subsections 3.4(e3.4(d) and (fe), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights notice given to each Lender of the Administrative Agent Prepayment Date as contemplated by subsection 3.4(e). Each prepayment of Initial Term Loans and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment Delayed Draw Term Loans pursuant to this subsection 3.4(b) of all made on or prior to the third anniversary after the Closing Date shall be accompanied by the payment of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Defaultpremium required by subsection 3.4(g).
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e3.4(d) and 3.4(f3.4(e), prepay the Term Loans to the extent required by subsection 7.4(b)(ii). Each prepayment of Initial Term Loans and Delayed Draw Term Loans pursuant to this subsection 3.4(c) made on or prior to the third anniversary after the Closing Date shall be accompanied by the payment of the premium required by subsection 3.4(g).
(d) Each prepayment of Term Loans pursuant to subsection 3.4(b) or 3.4(c) shall be applied within each applicable Tranche of Term Loans, first, to the accrued interest on the principal amount of Term Loans being prepaid (and fees and premium due on such amount, if any) and, second, to the respective installments of principal thereof in reverse order of maturity.
(e) The Borrower shall give written notice to the Administrative Agent of any mandatory prepayment of the Term Loans no later than 5:00 P.M., New York City time three Business Days prior to the date on which such payment is due (any such date of prepayment, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the relevant Prepayment Date as required by this subsection 3.4 (except as otherwise provided in the penultimate sentence of this subsection 3.4(e)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall promptly give notice to each Lender of the prepayment and the relevant Prepayment Date. Notwithstanding the foregoing, in the case of any prepayment pursuant to subsection 3.4(b) or (c), the Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment (and the Administrative Agent shall promptly notify the Lenders of the Borrower’s decision) by requiring the Lenders to give notice of such election to decline any such prepayment in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is two Business Days prior to the Prepayment Date (or such shorter period as may be agreed to by the Administrative Agent in its reasonable discretion). The Administrative Agent shall promptly notify the Borrower of any election by a Lender to decline receipt of such prepayment. Any amount so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness or otherwise be retained by the Borrower and its Subsidiaries or applied by the Borrower or any of its Subsidiaries in any manner not inconsistent with this Agreement, including subsection 7.5. To the extent a Lender does not elect to decline such prepayment within the time period set forth above, such Lender shall be deemed to have accepted such prepayment.
(f) Amounts prepaid on account of Term Loans pursuant to subsection 3.4(a), 3.4(b) or 3.4(c) may not be reborrowed.
(g) If, on or prior to the third anniversary of the Closing Date, the Borrower makes (x) a voluntary prepayment of all or any portion of the outstanding Initial Term Loans or Delayed Draw Term Loans pursuant to subsection 3.4(a) or (y) a mandatory prepayment of the Initial Term Loans or Delayed Draw Term Loans pursuant to subsection 3.4(b) or 3.4(c), the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender a prepayment premium (the “Prepayment Premium”) equal to (i) if such prepayment or payment is made on or prior to the first anniversary of the Closing Date, 4.00% of the principal amount of the Initial Term Loans and/or Delayed Draw Term Loans, as applicable, so prepaid or paid, (ii) if such prepayment or payment is made after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, 3.00% of the principal amount of the Initial Term Loans and/or Delayed Draw Term Loans, as applicable, so prepaid or paid, and (iii) if such prepayment or payment is made after the second anniversary of the Closing Date but on or prior to the third anniversary of the Closing Date, 2.00% of the principal amount of the Initial Term Loans and/or Delayed Draw Term Loans, as applicable, so prepaid or paid. No premium will be applicable if any such payment or prepayment is made after the third anniversary of the Closing Date. If the Initial Term Loans or Delayed Draw Term Loans are accelerated or otherwise become due prior to their maturity date, in each case, as a result of an Event of Default, including upon an Event of Default under subsection 8.1(a) or 8.1(f) (subject to subsection 7.4(c)).including the acceleration of claims by
Appears in 1 contract
Sources: Credit Agreement (Abacus Life, Inc.)
Optional and Mandatory Prepayments. (a) The Subject to Section 3.12, the Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least by irrevocable notice to the Administrative Agent by 10:00 a.m., New York City time, on the same Business Day (or, in the case of Swing Line Loans, by irrevocable notice to the Administrative Agent by 12:00 noon, New York City time, on the same Business Day) in the case of Alternate Base Rate Loans, and three Business Days’ irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans). Such notice shall specify specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to eachprepayment. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the Borrower shall make such prepayment, and the payment amount specified in such notice shall be due and payable payable, on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Revolving Credit Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples an aggregate principal amount equal to (A) $500,000, or a whole multiple of $1.0 million; provided that, notwithstanding the foregoing, the Term 100,000 in excess thereof with respect to Eurodollar Loans may be prepaid or (B) $250,000 or a whole multiple of $100,000 in their entiretyexcess thereof with respect to Alternate Base Rate Loans.
(bi) If on or after If, subsequent to the Closing Date the Borrower Effective Date, HubCo, or any Restricted Subsidiary of its Subsidiaries shall incur or permit the incurrence of any Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection Section 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus shall be promptly applied toward the reduction of the Revolving Credit Commitments as set forth in clause (iii) of this Section 3.4(b).
(ii) the portion of such Net Cash Proceeds applied (If, subsequent to the extent Effective Date, HubCo, the Borrower or any Restricted Subsidiary is required of their respective Subsidiaries shall receive Net Proceeds from any Asset Sale, such Net Proceeds shall be promptly applied toward the reduction of the Revolving Credit Commitments as set forth in clause (iii) of this Section 3.4(b); provided that such Net Proceeds need not be applied to the reduction of the Revolving Credit Commitments until the earlier of the date that the aggregate amount of Net Proceeds received by the terms thereofBorrower or any of its Subsidiaries from any Asset Sales exceeds $1,000,000 (and has not yet been applied to the reduction of the Revolving Credit Commitments hereunder) and the date which is six months after the last application of Net Proceeds pursuant to prepaythis Section 3.4(b)(ii).
(iii) Prepayments made pursuant to Sections 3.4(b)(i) or (ii) shall (A) reduce permanently the Revolving Credit Commitments and (B) be accompanied by prepayment of, repay or purchase other Additional Indebtedness on a pro rata basis with first, the Term Swing Line Loans, second, the Revolving Credit Loans and, third, the L/C Obligations to the extent, if any, that the sum of the aggregate outstanding principal amount of Revolving Credit Loans, the aggregate outstanding principal amount of all Swing Line Loans, the aggregate amount available to be drawn under all outstanding Letters of Credit and the aggregate outstanding amount of all L/C Obligations, in each case with such prepayment to be made on or before of all Lenders, exceeds the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights amount of the Administrative Agent and aggregate Revolving Credit Commitments as so reduced, provided that if the Lenders set forth in Section 8, except that in the case aggregate principal amount of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Revolving Credit Loans, termination of all Commitments hereunder Swing Line Loans and termination of L/C Obligations then outstanding is less than the LC Facility, the Administrative Agent and the Lenders agree that the incurrence amount of such Indebtedness will not excess (because Letters of Credit constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in accordance cash in a cash collateral account established for the benefit of the Lenders.
(c) If, subsequent to the Effective Date, the Revolving Credit Loans and Swing Line Loans then outstanding when added to the L/C Obligations then outstanding exceed the Borrowing Base then in effect, the Borrower shall immediately repay first, the Swing Line Loans and second, the Revolving Credit Loans, in an aggregate principal amount equal to such excess; provided that any such prepayment of Eurodollar Loans shall be made in the order of the Interest Periods with subsections 3.4(e) respect thereto ending nearest to the date such prepayment is required to be made. If, after giving effect to any such repayment, the Swing Line Loans and (f)the Revolving Credit Loans and have been fully repaid and the L/C Obligations then outstanding exceed the Borrowing Base then in effect, prepay the Term Loans in Borrower shall pay an amount equal to (A) (x) the ECF Percentage of (i) amount by which the Borrower’s Excess Cash Flow L/C Obligations then outstanding exceed the Borrowing Base then in effect to the Administrative Agent for the immediately preceding fiscal year minus (ii) benefit of the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), Issuing Lender and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingParticipants.
(d) The Borrower shall give the Administrative Agent (which shall promptly notify each Lender) at least one Business Day’s notice of each prepayment or mandatory reduction pursuant to Section 3.4(b) or (c) setting forth the date and amount thereof. Except as otherwise may be agreed by the Borrower and the Required Lenders, and subject to Section 3.4(b)(iii) and 3.4(c), any prepayment of Loans pursuant to this Section 3.4 shall be applied, first, to any Alternate Base Rate Loans then outstanding and the balance of such prepayment, if any, to the Eurodollar Loans then outstanding; provided that prepayments of Eurodollar Loans, if not on the last day of the Interest Period with respect thereto, shall, in accordance with subsections 3.4(e) and 3.4(f), prepay at the Term Loans option of the Borrower be prepaid subject to the extent provisions of Section 3.12 or the amount of such prepayment (after application to any Alternate Base Rate Loans) shall be deposited with the Administrative Agent as cash collateral for the Loans on terms reasonably satisfactory to the Administrative Agent and thereafter shall be applied in the order of the Interest Periods next ending most closely to the date such prepayment is required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))be made and on the last day of each such Interest Period. After such application, unless an Event of Default shall have occurred and be continuing, any remaining interest earned on such cash collateral shall be paid to the Borrower, as agent for the Borrower.
Appears in 1 contract
Sources: Revolving Credit Agreement (Stratus Technologies International Sarl)
Optional and Mandatory Prepayments. (a) The A Borrower may at any time and ---------------------------------- from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower delivered to the Administrative Agent (no later than 11:00 A.M., New York City time, three Business Days prior thereto, in the case of Eurocurrency Loans), and at least no later than 11:00 A.M., New York City time, one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (Day prior thereto, in the case of ABR Loans). Such , which notice shall specify the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereofABR Loans; provided, and, that if a combination thereofEurocurrency Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the principal amount allocable such Borrower shall also pay any amounts owing pursuant to eachSection 2.18. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at except in the end case of the Interest Period applicable theretoRevolving Loans that are ABR Loans and Swingline Loans) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Revolving Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments in an aggregate principal amount of principal of such Term Loans in such order as the Borrower may direct$1,000,000 or a whole multiple thereof. Partial prepayments pursuant to this subsection 3.4(a) of Swingline Loans shall be in multiples an aggregate principal amount of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entirety.
(b) If on 100,000 or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to a whole multiple thereof. To the extent the Borrower or that at any Restricted Subsidiary is required time (by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date virtue of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that changes in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default Exchange Rate or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (iiotherwise) the aggregate principal amount of Term the Loans prepaid pursuant to subsection 3.4(a), and any Letters of Credit outstanding shall exceed the Total Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, Commitments then in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A)effect, the “ECF Prepayment Amount”) minus (B) Borrowers shall make prompt repayment of the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))of such excess.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Subject to Section 2.16, the Borrower may may, at any time and from time to time time, prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ ' irrevocable written notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Eurodollar Loans), and at least or one Business Day’s 's irrevocable written notice by the Borrower to the Administrative Agent (in the case of ABR Alternate Base Rate Loans). Such notice shall specify , to the Administrative Agent, specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Revolving Credit Loans or Term Loans or a combination thereof, with respect to each such type of Loan, whether such prepayment is of Eurodollar Loans, ABR Alternate Base Rate Loans or a combination thereof, and, in each case if of a combination thereof, the principal amount allocable to each. Upon In the receipt case of any a partial prepayment, such notice prepayment shall be in an amount of not less than (i) $3,000,000 or in integral multiples of $1,000,000 (in the Administrative Agent shall promptly notify each affected Lender thereofcase of Eurodollar Loans); (ii) $1,000,000 or in integral multiples of $500,000 (in the case of Alternate Base Rate Loans); and (iii) $1,000,000 or in integral multiples of $250,000 (in the case of Swingline Loans). If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable theretox) any amounts payable pursuant to subsection 3.12 and Section 2.16, (y) with respect to Eurodollar Loans, accrued interest to such date on the amount prepaid and (z) any outstanding fees and expenses then due and owing with respect to the amount prepaid. Partial prepayments and optional prepayments of Term the Revolving Credit Loans pursuant to this subsection 3.4(a) shall be applied to such Revolving Credit Loans but shall not reduce the respective installments of principal of such Term Loans in such order as Revolving Credit Commitments unless the Borrower may direct. Partial prepayments pursuant so specifies in its written notice to this subsection 3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entiretyAdministrative Agent.
(b) If on or The Borrower shall, subject to the provisions of Section 8.2.8(b), within five Business Days after the Closing Date receipt by the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money of the Net Cash Proceeds of any Asset Sales (other than Indebtedness permitted pursuant or if committed to subsection 7.1be expended within 365 days, after such 365 days if not so expended), then, in each casemake a mandatory prepayment of the Loans, the Borrower shall prepay, in accordance with subsections 3.4(e) Private Placement Debt and (f), the Term Loans Parity Debt pro rata in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will Asset Sales not constitute a Default or Event of Defaultso expended.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the The Borrower shall, within five Business Days of receipt, apply 100% of the net proceeds of insurance and condemnation awards after payment of costs and expense and associated taxes (not applied to the restoration or replacement of like kind assets within 365 days) over an aggregate of $2,500,000 in accordance with subsections 3.4(eany Fiscal Year to prepay the Loans, and if and to the extent required by the express terms thereof the Private Placement Debt and the Parity Debt pro rata (taking into account any premiums that may be due).
(d) Mandatory prepayments of the Loans pursuant to clause (b) or (c) above shall be applied first to the prepayment of outstanding Term Loans, then to the prepayment of outstanding Swingline Loans, then to the prepayment of outstanding Revolving Credit Loans, and then to the prepayment of outstanding LOC Obligations, such mandatory prepayment that is applied to the LOC Obligations to be held as cash collateral therefor pursuant to the terms of Section 2.19.
(e) The Borrower shall prepay the Revolving Credit Obligations as and to the extent required pursuant to Section 8.1.10.
(f)) Each prepayment of Eurodollar Loans pursuant to this Section 2.6 shall be accompanied by payment in full of all accrued interest thereon, prepay to and including the Term Loans in an date of such prepayment, together with any additional amounts owing pursuant to Section 2.16 and any outstanding fees and expenses due and owing with respect to the amount equal to prepaid.
(Ag) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) If at any time the aggregate principal amount of Term Swingline Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to shall exceed the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A)Swingline Commitment, the “ECF Prepayment Amount”) minus (B) Borrower shall immediately make payment on the portion of such ECF Prepayment Amount applied (Swingline Loans in an amount sufficient to eliminate the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingexcess.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Optional and Mandatory Prepayments. (ai) The Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Loans)prior to 11:00 a.m., and at least New York City time, one Business Day’s irrevocable notice by the Borrower Day prior to the Administrative Agent (in the case of ABR Loans). Such notice shall specify such prepayment, specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereofthereof on the date of receipt of such notice. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 5.11 and, in the case of prepayments of the Term Loans and LOC Loans only, accrued interest to such date on the amount prepaid. Amounts prepaid on account of the Term Loans may not be reborrowed. Partial prepayments shall be in an aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in paragraph (ii) below, all optional prepayments of the Term Loans pursuant to this subsection 3.4(a) shall be made on a PRO RATA basis between the Tranche A Term Loans and the Tranche B Term Loans and shall be applied to the respective remaining installments of principal thereof PRO RATA.
(ii) Optional prepayments of Term Loans made by the Borrower during any fiscal year pursuant to subsection 5.1(a)(i) out of the portion of Excess Cash Flow for the previous fiscal year not required to be applied to prepay the Term Loans and/or LOC Loans pursuant to subsection 5.1(b) (which portion shall be equal to the product of the Excess Cash Flow for such fiscal year times the percentage obtained by subtracting the Cash Flow Percentage in effect at such time from 100%) (with respect to any fiscal year, "BORROWER'S PORTION OF EXCESS CASH FLOW") shall, at the option of the Borrower by written notice to such effect to the Agent, FIRST be allocated between the Tranche A Term Loans and the Tranche B Term Loans in amounts to be determined by the Borrower, SECOND, be applied against the scheduled installments of principal, if any, of the Tranche A Term Loans due within six months of the date of such order prepayment and/or against the scheduled installments of principal, if any, of the Tranche B Term Loans due within six months of the date of such prepayment, as the case may be, and, THIRD, be applied to the remaining installments of the Tranche A Term Loans and/or the Tranche B Term Loans, as the case may be, PRO RATA, PROVIDED that, to the extent the Borrower may direct. Partial pays any dividends pursuant to subsection 9.7(f), the amount of the Borrower's Portion of Excess Cash Flow available to make prepayments pursuant to this subsection 3.4(a5.1(a)(ii) shall be in multiples reduced by the amount of $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entiretysuch dividend payments.
(b) If on or after Unless the Closing Date Required Lenders otherwise agree, if with respect to any fiscal year of the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1)Borrower, thencommencing with its fiscal year ending September 27, in each case1995, the Borrower shall prepayhave Excess Cash Flow for such fiscal
(i) the Term Loans shall be prepaid in an aggregate amount equal to the Cash Flow Percentage of such Excess Cash Flow and (ii) after the Term Loans shall have been prepaid in full, any outstanding LOC Loans shall be prepaid in an aggregate amount equal to the Cash Flow Percentage of such Excess Cash Flow. For purposes of this subsection 5.1(b), the "CASH FLOW PERCENTAGE" shall be equal to 75%, PROVIDED that, at any time after the aggregate principal amount of Term Loans outstanding (before giving effect to any such prepayment) is less than or equal to $250,000,000 and so long as the Consolidated Interest Expense Ratio for the period of four consecutive fiscal quarters ended the last day of the fiscal quarter immediately preceding the date of such prepayment exceeds 3.00 to 1.00, the Cash Flow Percentage with respect to Term Loans and LOC Loans shall be 50%. Each such prepayment shall be made on or before the date which is 90 days after the end of such fiscal year. In the event that (x) the Borrower makes any optional prepayment of Term Loans during any fiscal year (the "BASE YEAR") or the portion of the next succeeding fiscal year preceding the date on which any mandatory prepayment is required to be made in respect of the Base Year pursuant to this subsection 5.1(b) and (y) such optional prepayment is applied in accordance with subsections 3.4(esubsection 5.1(a)(i), then the Borrower may credit the amount of any such optional prepayment against (and thereby reduce) the amount of any mandatory prepayment required pursuant to this subsection 5.1(b) in respect of such Base Year by delivering a notice to such effect to the Agent which specifies the dates and amounts of any such optional prepayments, PROVIDED that no such optional prepayment may be credited against any such mandatory prepayment to the extent that such optional prepayment (fI) reduced any prior mandatory prepayment pursuant to this subsection 5.1(b) or (II) reduced the amount of any prepayment required to be made with Excess Cash Flow for the relevant fiscal year pursuant to the first sentence of this subsection 5.1(b).
(c) Unless the Required Lenders otherwise agree, the Term Loans and, after the Term Loans shall have been prepaid in an amount equal to full, any outstanding LOC Loans shall be prepaid with (i) 100% of the Net Cash Proceeds thereof minus of (iiA) the portion any Indebtedness in respect of such Net Cash Proceeds applied (to the extent Sale/Leaseback Transactions permitted under subsection 9.2(e) incurred by the Borrower or any Restricted Subsidiary is required of its Subsidiaries subsequent to the Original Closing Date in respect of an asset owned by the terms thereof) Borrower or any Subsidiary for a period of at least 180 days prior to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event (B) any Indebtedness permitted under subsection 9.2(g) incurred by the Borrower or any of Default.
its Subsidiaries subsequent to the Original Closing Date to the extent the aggregate amount of Indebtedness outstanding under such subsection exceeds $20,000,000 at such time, (cii) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year 50% of the Borrower ending on Net Proceeds of the issuance of Capital Stock by Holdings or after December 31, 2008 any of its Subsidiaries subsequent to the Original Closing Date (each, an “ECF Payment Date”), other than the issuance of additional shares of Capital Stock by the Borrower shallor any of its Subsidiaries to Holdings or any of its Subsidiaries (PROVIDED that such shares of Capital Stock are pledged to the Agent, in accordance with subsections 3.4(efor the benefit of the Lenders, pursuant to the Pledge Agreements)) and (fiii) 100% of the Net Proceeds of any Asset Sale by the Borrower or any of its Subsidiaries permitted under subsection 9.6(b), 9.6(c) (to the extent such Asset Sale constitutes an Asset Sale of Timberland Property) or 9.6(i)(II), PROVIDED that, (x) if the Net Proceeds realized from any such Asset Sale (or series of related Asset Sales) are less than $500,000, such Net Proceeds shall not be applied to the prepayment of the Term Loans pursuant to this subsection, (y) if the Net Proceeds realized from any such Asset Sale exceed $500,000, such Net Proceeds shall not be applied to the prepayment of the Term Loans pursuant to this subsection until such time as the aggregate amount of such Net Proceeds in any fiscal year exceeds $10,000,000 and then such Net Proceeds shall be applied to prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to this subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facilitysuch Net Proceeds exceed $10,000,000 in any fiscal year, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term IndebtednessPROVIDED that, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid notwithstanding anything to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, contrary in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication such Net Proceeds shall be applied to the prepayment of any amount thereof previously deducted in any calculation the Term Loans pursuant to this subsection 3.4(cto the extent such Net Proceeds would otherwise result in "Excess Proceeds" (as defined in Section 4.10 of the Senior Subordinated Note Indenture) for exceeding $25,000,000 in the aggregate, and (z) at the option of the Borrower and so long as no Event of Default shall have occurred and be continuing or would be caused thereby, the Borrower may use or cause the appropriate Subsidiary to use the Net Proceeds of any prior ECF Payment DateAsset Sale permitted under subsection 9.6(b) to purchase assets of the same general kind as those disposed of in such Asset Sale ("QUALIFIED ASSETS") within one year after the amount described in consummation of such Asset Sale. In the event the Borrower elects to exercise its right to purchase Qualified Assets with the Net Proceeds of an Asset Sale pursuant to this clause (Asubsection 5.1(c), the “ECF Prepayment Amount”Borrower shall promptly deliver a certificate of a Responsible Officer to the Agent setting forth the amount of the Net Proceeds which the Borrower expects to use to purchase Qualified Assets during the subsequent one year period. On the date which is one year after the relevant Asset Sale, the Borrower shall (I) minus deliver a certificate of a Responsible Officer to the Agent certifying as to the amount and use of such Net Proceeds actually used to purchase Qualified Assets (Bwhich amount of Net Proceeds so used, to the extent that it would otherwise be included in any computation of Net Proceeds from Asset Sales pursuant to clause (y) of the proviso to the first sentence of this subsection, shall be excluded from such computation) and (II) deliver to the Agent, for application in accordance with this subsection 5.1(c), an amount equal to the remaining unused Net Proceeds. Except as otherwise provided in this subsection 5.1(c) or in subsection 5.1(e), each prepayment pursuant to this subsection 5.1(c) shall be made on the third Business Day following receipt of the Net Proceeds from (a) the portion incurrence of such ECF Prepayment Amount applied Indebtedness, (b) issuance of Capital Stock or (c) after and to the extent the Borrower or any Restricted Subsidiary is Net Proceeds of an Asset Sale are required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with be applied to prepay the Term Loans. For the avoidance of doubt, for purposes of this Loans and/or LOC Loans pursuant to subsection 3.4(c5.1(c)(iii), proceeds from such Asset Sale, as the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingcase may be.
(d) The Borrower Subject to subsection 5.1(e), prepayments of the Term Loans pursuant to subsection 5.1(b) and 5.1(c) shall be applied to the prepayment of the Tranche A Term Loans and the Tranche B Term Loans PRO RATA and shall be applied to the remaining installments thereof on a PRO RATA basis. Prepayments of outstanding LOC Loans pursuant to subsection 5.1(b) and 5.1(c) shall be applied to the prepayment of such LOC Loans PRO RATA. Amounts to be applied pursuant to this subsection 5.1(d) to the prepayment of Term Loans and/or LOC Loans shall be applied, as applicable, first to reduce outstanding Term Loans and/or LOC Loans which are ABR Loans. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Term Loans and/or LOC Loans which are Eurodollar Loans immediately and/or shall be deposited in the Prepayment Account (as defined below). The Agent shall apply any cash deposited in the Prepayment Account (i) allocable to Term Loans to prepay Term Loans which are Eurodollar Loans and (ii) allocable to LOC Loans to prepay LOC Loans which are Eurodollar Loans, in each case on the last day of the respective Interest Periods therefor (or, at the direction of the Borrower, on any earlier date) until all outstanding Term Loans and/or LOC Loans which are Eurodollar Loans have been prepaid or until all cash on deposit in the Prepayment Account with respect to such Loans has been exhausted. For purposes of this Agreement, the term "PREPAYMENT ACCOUNT" shall mean an account established by the Borrower with the Agent and over which the Agent shall have exclusive dominion and control, including the right of withdrawal for application in accordance with subsections 3.4(ethis subsection 5.1(d). The Agent will, at the request of the Borrower, invest amounts on deposit in the Prepayment Account in Cash Equivalents that mature prior to the last day of the applicable Interest Periods of the Eurodollar Loans to be prepaid, PROVIDED that the Agent shall not be required to make any investment that, in its sole judgment, would require or cause the Agent to be in, or would result in any, violation of any Requirement of Law and (ii) the Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if a Default or Event of Default shall have occurred and 3.4(f)be continuing. The Borrower shall indemnify the Agent for any losses relating to the investments so that the amount available to prepay Eurodollar Loans on the last day of the applicable Interest Periods therefor is not less than the amount that would have been available had no investments been made. Other than any interest earned on such investments, the Prepayment Account shall not bear interest. Interest or profits, if any, on such investments shall be deposited and reinvested and disbursed as described above. If the maturity of the Loans has been accelerated pursuant to Section 11, the Agent shall first apply all amounts on deposit in the Prepayment Account to prepay the outstanding Tranche A Term Loans and the Tranche B Term Loans PRO RATA and, then, to prepay any outstanding LOC Loans. The Borrower hereby grants to the extent required by subsection 7.4(b)(ii) (subject Agent, for its benefit and the benefit of the Lenders, a security interest in the Prepayment Account to subsection 7.4(c))secure the Obligations.
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Warren S D Co /Pa/)
Optional and Mandatory Prepayments. (a) The Subject to subsection 4.1(e), the Borrower may may, at any time and from time to time time, prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penaltypenalty (except, with respect to Eurodollar Loans that are prepaid on a date other than the last day of the Interest Period with respect thereto, as provided under subsection 4.11), upon (i) in the case of prepayments of Eurodollar Loans, at least three Business Days’ ' irrevocable notice (which notice may be given by the Borrower telephone (to be promptly confirmed in writing, including by facsimile) to the Administrative Agent and (ii) in the case of Eurocurrency prepayments of ABR Loans (other than Swing Line Loans), and at least one Business Day’s irrevocable notice (which notice may be given by the Borrower telephone (to be promptly confirmed in writing, including by facsimile)) to the Administrative Agent (prior to 11:30 A.M., New York City time, on the date of such prepayment, in the each case of ABR Loans). Such notice shall specify specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and 4.11 in connection therewith and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Partial prepayments Amounts prepaid on account of the Term Loans pursuant to this subsection 3.4(a) shall may not be reborrowed and will be applied to the respective installments thereof in the scheduled order of principal of such Term Loans in such order as the Borrower may directmaturity thereof. Partial prepayments pursuant to under this subsection 3.4(a4.1(a) shall be be, in multiples the case of Eurodollar Loans, in an aggregate principal amount of $1.0 million; provided that10,000,000 or a whole multiple of $1,000,000 in excess thereof and in the case of ABR Loans, notwithstanding the foregoing, the Term Loans may be prepaid in their entiretyan aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) If on or after the Closing Date the Borrower or If, at any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each casetime, the Borrower shall prepay, in accordance with subsections 3.4(eAggregate Outstanding Extensions of Credit at such time exceed (x) and the Borrowing Base at such time or (f)y) if applicable, the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”)Interim Maximum Amount, the Borrower shall, without notice or demand, immediately repay Swing Line Loans then outstanding and/or, after the Swing Line Loans have been paid in accordance with subsections 3.4(e) and (f)full, prepay the Term Revolving Loans in an aggregate principal amount equal to (A) (x) the ECF Percentage lesser of (i) the Borrower’s Excess Cash Flow for amount of such excess and (ii) the aggregate principal amount of Swing Line Loans and Revolving Loans then outstanding, together with interest accrued to the date of such payment or prepayment on the principal so prepaid and any amounts payable under subsection 4.11 in connection therewith. To the extent that after giving effect to any prepayment of Swing Line Loans and Revolving Loans required by the preceding sentence, the Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time or the Interim Maximum Amount, if applicable, the Borrower shall, without notice or demand, immediately deposit in the Collateral Account upon terms reasonably satisfactory to the Administrative Agent an amount equal to the lesser of (i) the aggregate then outstanding L/C Obligations and (ii) the amount of such remaining excess. The Administrative Agent shall apply any cash deposited in the Collateral Account (to the extent thereof) to pay any Reimbursement Obligations which become due thereafter. To the extent that after giving effect to any prepayment of the Revolving Loans and cash deposits required by the preceding fiscal year minus sentences, the Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time or the Interim Maximum Amount, if applicable, the Borrower shall, without notice or demand, immediately repay the Term Loans in the scheduled order of maturity thereof in an aggregate principal amount equal to the lesser of (i) the amount of such excess and (ii) the aggregate principal amount of Term Loans then outstanding, together with interest accrued to the date of such payment or prepayment on the principal so prepaid pursuant to subsection 3.4(a), and any amounts payable under subsection 4.11 in connection therewith. The Borrower shall also prepay the Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under required to comply with subsection 3.16.
(i) The Borrower shall prepay the Term Loans and, if there are no Term Loans outstanding, the Revolving FacilityLoans, in each case during such fiscal year excluding prepayments funded with proceeds from within three Business Days after the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied receipt by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required of any Debt Issuance Proceeds in an amount equal to such Debt Issuance Proceeds.
(ii) Subject to subsection 4.1(e), the Borrower shall repay the Revolving Loans, within three Business Days after the receipt by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing Borrower or any other revolving credit or working capital financingRestricted Subsidiary of any Asset Sale Proceeds in respect of the Collateral, in an amount equal to such Asset Sale Proceeds, and concurrently therewith the Cumulative Asset Sale Reserve shall be increased by 50% of the positive difference between (A) the amount of such Asset Sale Proceeds and (B) the amount of such Asset Sale Proceeds which were included in the Borrowing Base immediately prior to such disposition.
(d) Subject to subsection 4.1(e), the Borrower agrees that all available funds in the Collateral Account (except for Asset Sale Proceeds and Debt Issuance Proceeds) shall be applied first, pro rata, to the amount of the Swing Line Loans and any Reimbursement Obligations then outstanding, next to the outstanding principal amount of the Revolving Loans, then (i) on any Business Day that any funds are on deposit in the Collateral Account and no Default or Event of Default has occurred and is continuing, the Borrower may direct the Administrative Agent to transfer to the Borrower's disbursement account funds up to the difference between the Borrowing Base as reflected in the most recent Borrowing Base Certificate and 100% of the remaining Secured Obligations and (ii) on any Business Day that any funds are on deposit in the Collateral Account and a Default or Event of Default has occurred and is continuing, the Borrower may direct the Administrative Agent to transfer to the Borrower's disbursement account funds up to the difference between the Borrowing Base as reflected in the most recent Borrowing Base Certificate and 105% of the remaining Secured Obligations. The Borrower shallshall utilize funds on deposit in the Collateral Account that are available to it pursuant to the terms hereof prior to requesting Revolving Loans to be made hereunder.
(e) The Borrower agrees that, (i) to the extent there are Asset Sale Proceeds as a result of the sale of any Eligible Mortgaged Real Property located within the State of Florida, such Asset Sale Proceeds shall only be applied in accordance with subsections 3.4(erepayment of the Term Loans, and (ii) and 3.4(f)to the extent the Borrowing Base includes any Eligible Mortgaged Real Property located in the State of Florida, prepay the Term Loans may not be reduced, as a result of the operation of subsection 4.1, by an amount less than the aggregate Mortgage Value with respect to all such parcels of Eligible Mortgaged Real Property which are located within the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)State of Florida. The Mortgage Value of Eligible Mortgaged Real Property located in the State of Florida as of the date hereof is shown on Schedule 4.1(e).
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower Each of the Borrowers may at any time and from time to time prepay the Term Loans made to it it, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penalty, upon notice by the Borrower Representative to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days’ irrevocable notice Days (or such shorter period as may be agreed by the Borrower to the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans)) or prior to 2:00 P.M., and at least one Business Day’s irrevocable notice New York City time (or such later time as may be agreed by the Borrower to the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans). Such notice shall specify be irrevocable except as provided in Subsection 4.4(e). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Eurocurrency Revolving Credit Loans, and (ii) of Eurodollar Loans or ABR Loans Loans, or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(e)) be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on Subsection 4.12, the amount prepaid. Partial prepayments of Term Revolving Credit Loans pursuant to this subsection 3.4(aSection and shall (unless the Borrower Representative otherwise directs) shall be applied to payment of the respective installments of principal of such Term Revolving Credit Loans in such order as the Borrower may directthen outstanding. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million100,000 (in the case of Revolving Credit Loans outstanding in Dollars), €100,000 (in the case of Revolving Credit Loans outstanding in Euro) or the Dollar Equivalent of at least $100,000 (in the case of Revolving Credit Loans outstanding in a Designated Foreign Currency other than Euro), as applicable; provided that, notwithstanding the foregoing, the Term Loans any Loan may be prepaid in their its entirety.
(b) If on or after the Closing Date the Borrower or On any Restricted Subsidiary shall incur Indebtedness for borrowed money day (other than Indebtedness permitted pursuant to subsection 7.1)during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, then, in each caseor for the account of, the Borrower shall prepay, in accordance with subsections 3.4(eBorrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) and (f)or the aggregate Commitments at such time, the Term Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Defaultexcess.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness Commitments shall not be deemed to include proceeds from correspondingly reduced by the Incurrence amount of Indebtedness any prepayments of Revolving Credit Loans made under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingSubsection 4.4(b).
(d) The Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower shallincurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially make a prepayment of the Revolving Credit Loans in accordance with subsections 3.4(eSubsection 4.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans; provided, further, that such unpaid Eurodollar Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid.
(e) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(f) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and 3.4(f), prepay the Term Loans Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent required by subsection 7.4(b)(ii) (subject necessary to subsection 7.4(c))reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Sources: Credit Agreement (CHC Group Ltd.)
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it it, in whole or in part, subject to subsection 3.12Section 4.12, without premium or penaltypenalty (except as provided in Section 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and or prior to 2:00 P.M., New York City time at least one Business Day’s irrevocable notice by the Borrower Day prior to the Administrative Agent date of prepayment (in the case of ABR Loans). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSection 4.12. Partial prepayments pursuant to this subsection 3.4(aSection 4.4(a) shall be in multiples equal to $1.0 million or a whole multiple of $1.0 million500,000 in excess thereof; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Section 4.4(a) made on or prior to the first anniversary of the Closing Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Section 4.5(b).
(bi) If The Borrower shall, in accordance with Section 4.4(c), prepay the Term Loans to the extent required by Section 8.3; (ii) if on or after the Closing Date Date, the Borrower or any of its Restricted Subsidiary Subsidiaries shall incur Indebtedness for borrowed money (other than excluding Indebtedness permitted pursuant to subsection 7.1Section 8.1), then, in each case, the Borrower shall prepayshall, in accordance with subsections 3.4(e) and (fSection 4.4(c), prepay the Term Loans in an amount equal to (i) 100100.0% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights notice given to each Lender of the Administrative Agent Prepayment Date, as contemplated by Section 4.4(d), and (iii) the Lenders set forth Borrower shall, in accordance with Section 84.4(c), except that in prepay the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all Term Loans within 120 days following the last day of the Term Loans, termination of all Commitments hereunder and termination of immediately preceding Fiscal Year (commencing with the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower Fiscal Year ending on or after December 31about September 30, 2008 2014) (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x1) 50.0% (as may be adjusted pursuant to the ECF Percentage last proviso of this clause (iiii)) of the Borrower’s Excess Cash Flow for the immediately preceding fiscal year such Fiscal Year minus (ii2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans) repaid pursuant to Section 2.2(b) or prepaid pursuant to subsection 3.4(aSection 4.4(a) and Pari Passu Indebtedness (other than the Revolving Facility Loans) (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, redeemed, repurchased or repaid pursuant to a scheduled principal payment, in each case during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans) prepaid pursuant to Section 4.4(a) and Pari Passu Indebtedness (other than the Revolving Facility Loans) (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, redeemed, repurchased or repaid during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Section 4.4(b)(iii) (provided that no prepayments made pursuant to Section 4.4(h) or the other clauses of this Section 4.4(b) shall be included in Section 4.4(b)(iii)(A)(2)(w) or (x)), (y) any Revolving Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilityFacility during such Fiscal Year (which, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtednessany event, minus shall not include any designated prepayment pursuant to clause (yz) below), and (z) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilityFacility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Section 4.4(b)(iii), in each case since the end of such fiscal year and on or prior to such ECF Payment Datecase, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to (x) 25% if the Senior Secured Debt to EBITDA Ratio as of the last day of the immediately preceding Fiscal Year was less than or equal to 2.00:1.00 and greater than 1.50:1.00 and (y) 0% if the Senior Secured Debt to EBITDA Ratio as of the last day of the immediately preceding Fiscal Year was less than or equal to 1.50:1.00. For Nothing in this Section 4.4(b) shall limit the avoidance rights of doubtthe Agents and the Lenders set forth in Section 9.
(c) Subject to the last sentence of Section 4.4(d) and Section 4.4(g), for purposes each prepayment of Term Loans pursuant to Section 4.4(b) shall be allocated pro rata among the Initial Term Loans, the Incremental Term Loans and the Extended Term Loans; provided, that at the request of the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to Section 4.4(a) and (b) shall be applied within each Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity). Notwithstanding any other provision of this subsection 3.4(cSection 4.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Section 4.4(a) or (b), proceeds from exchange such Lender’s portion of the Incurrence Term Loan to be prepaid for Rollover Indebtedness, in lieu of long-term Indebtedness such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall not be deemed to include proceeds from the Incurrence of Indebtedness repaid for all purposes under the Revolving Facility, any Special Purpose Financing Loan Documents); provided that the Administrative Agent shall have no duties or any other revolving credit or working capital financingobligations to manage such Rollover Indebtedness.
(d) The Borrower shallshall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Section 4.4(b)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to Section 4.4(b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Section 4.4(b)(i), on or before the date specified in Section 8.3(c), and (ii) in the case of mandatory prepayments pursuant to Section 4.4(b)(ii) or (iii), on or before the date specified in Section 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Section 4.4(d)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment pursuant to Section 4.4(b)(i) or (iii) by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness, including the Holdings Notes, the Existing Unsecured Notes and any Subordinated Indebtedness, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement. In connection with any mandatory prepayments by the Borrower pursuant to Section 4.4(b), such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar Loans; provided that if no Lenders exercise the right to decline a mandatory prepayment pursuant to Section 4.4(b), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans.
(e) Amounts prepaid on account of Term Loans pursuant to Section 4.4(a), (b) or (h) may not be reborrowed.
(f) Notwithstanding the foregoing provisions of this Section 4.4, if at any time any prepayment of the Term Loans pursuant to Section 4.4(a) or (b) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower incurring breakage costs under Section 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid), to be held as security for the obligations of the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by the Borrower) or (ii) make a prepayment of the Term Loans in accordance with subsections 3.4(eSection 4.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans shall continue to bear interest in accordance with Section 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid. In addition, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be applied to prepay Term Loans pursuant to Section 4.4(b)(i) or (iii) would violate applicable Laws or result in material adverse tax consequences to the Borrower or any of its Restricted Subsidiaries, then the Borrower shall not be required to prepay such amounts as required thereunder; provided that the Borrower and 3.4(fits Subsidiaries shall take commercially reasonable actions to repatriate the proceeds subject to such prepayments in order to effect such prepayments without violating applicable Laws or incurring material adverse tax consequences.
(g) Notwithstanding anything to the contrary herein, this Section 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to Sections 2.6 and 2.8, as applicable, or pursuant to any other credit facility added pursuant to Section 2.6 or 11.1(e).
(h) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Section 9.1(a) or (f) has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
(i) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Section 4.4(h); provided that the Borrower shall not initiate any action under this Section 4.4(h) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date or (2) at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender. Each Lender participating in any Discounted Term Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent required permitted by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).law, any claims such Lender may have against the Borrower, its Subsidiaries, the Administrat
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s irrevocable notice by or prior to 2:00 P.M., New York City time on the Borrower to the Administrative Agent date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in a minimum amount of $1,000,000 and integral multiples of $1.0 million500,000 in excess thereof; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety.
(b. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) If on or made prior to the date that is six months after the Closing ClosingThird Amendment Effective Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured term loan financing incurred in a Repricing Transaction shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, be accompanied by the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% payment of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is fee required by the terms thereofSubsection 4.5(b).
(b) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default[Reserved].
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing[Reserved].
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))[Reserved].
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower Borrowers may at any time and from time to time prepay the Term Loans made to it them, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon notice by the Borrower Representative to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days’ irrevocable notice Days (or such shorter period as may be agreed by the Borrower to the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s irrevocable notice by or prior to 2:00 P.M., New York City time on the Borrower to the Administrative Agent date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower Representative (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million1,000,000; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made prior to the date that is twelve months after the Closing Date in an amount equal to the Net Cash Proceeds received by the Parent Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing incurred in a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b).
(b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default[Reserved].
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing[Reserved].
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))[Reserved].
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower Borrowers may at any time and from time to time prepay the Term Loans made to it them, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon notice by the Borrower Representative to the Administrative Agent prior to 2:00 P.M., New York City time at least three Business Days’ irrevocable notice Days (or such shorter period as may be agreed by the Borrower to the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and at least one Business Day’s irrevocable notice by or prior to 2:00 P.M., New York City time on the Borrower to the Administrative Agent date of prepayment (in the case of ABR Loans) (or such later time as may be agreed by the Administrative Agent in its reasonable discretion). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower Representative (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million1,000,000; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety.
(b. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) If on or made prior to the date that is six months after the Closing Date in an amount equal to the Net Cash Proceeds received by the Borrower or any Restricted Subsidiary from its incurrence of new Indebtedness under first lien secured bank financing incurred in a Repricing Transaction shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, be accompanied by the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% payment of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is fee required by the terms thereofSubsection 4.5(b).
(b) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default[Reserved].
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing[Reserved].
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c))[Reserved].
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Any Borrower may at any time and from time to time prepay any Loans (other than, to the Term extent that any other Loans are then outstanding, the Unsecured Supplemental Loans, and provided, that the Incremental Dollar Loans shall be paid or prepaid in full before any voluntary prepayment is made on account of any Domestic Revolving Credit Loans unless such voluntary prepayment is made to it enable the Company to request the issuance of additional Letters of Credit under the Domestic Revolving Credit Commitment and then such voluntary prepayment shall be limited to the amount of such anticipated issuance of additional Letters of Credit, and that the Incremental Sterling Loans shall be paid or prepaid in full before any voluntary prepayment is made on account of any UK Revolving Credit Loans), in whole or in part, subject to subsection 3.12, part without premium or penalty, upon at least three Business Days’ ' irrevocable notice by the Borrower to the Administrative Agent (in the case of Eurocurrency Eurodollar Loans or Domestic Sterling Loans), and at least ) or one Business Day’s 's irrevocable notice by the Borrower to the Administrative Agent (in the case of ABR Loans or Sterling Base Rate Loans). Such notice shall specify the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the
(b) As promptly as practicable following the occurrence of any Prepayment Event (and, in any event, within one Business Day following the receipt by the Company or any of its Subsidiaries of the Net Cash Proceeds therefrom), the Borrowers shall prepay the Loans (in the manner, and to the extent, specified by subsection 10.2(f)) by the amount specified equal to 100% of such Net Cash Proceeds.
(c) Within 90 days following the last day of each fiscal year of the Company and, in such notice shall be due and payable on any event, not later than the date specified therein, together upon which the financial statements with (if a Eurocurrency Loan is prepaid other than at respect to such fiscal year are delivered to the end of the Interest Period applicable thereto) any amounts payable Agent pursuant to subsection 3.12 13.4(a) (commencing with the fiscal year ending December 31, 1997), the Borrowers shall prepay Loans (in the manner, and accrued interest to the extent, specified by subsection 10.2(f)) by the amount equal to 50% of Excess Cash Flow for such fiscal year; provided, however, that no such prepayment shall be required to be so made if the Leverage Ratio (calculated in accordance with the provisions of subsection 14.16) on the last day of the fiscal year in respect of which such prepayment would otherwise be required was less than or equal to 3.00 to 1.00.
(d) If on any date (including any date on which a Domestic Borrowing Base Certificate is delivered pursuant to subsection 13.4(j)) the aggregate principal amount of the Domestic Revolving Credit Exposure and the Incremental Dollar Loans on such date exceeds the then applicable Domestic Borrowing Base, the Company shall immediately (and without notice or demand) prepay such Incremental Dollar Loans or the Domestic Swing Line Loans (and, to the extent necessary, the Domestic Revolving Credit Loans) by the amount equal to such excess. If on any date the aggregate principal amount of the Domestic Revolving Credit Exposure on such date exceeds the Domestic Revolving Credit Commitments then in effect, the Company shall immediately (and without notice or demand) prepay the Domestic Swing Line Loans (and, to the extent necessary, the Domestic Revolving Credit Loans) by the amount equal to such excess. If on any date the aggregate principal amount of the Incremental Dollar Loans exceeds the Incremental Dollar Credit Commitments, the Company shall immediately (and without notice or demand) prepay the Incremental Dollar Loans by the amount of such excess.
(e) If on any date (including any date on which a UK Borrowing Base Certificate is delivered pursuant to subsection 13.4(j)) the aggregate principal amount of the UK Revolving Credit Exposure and the Incremental Sterling Loans on such date exceeds the then applicable UK Borrowing Base, the UK Borrower shall immediately (and without notice or demand) prepay such Incremental Sterling Loans and the UK Swing Line Loans (and, to the extent necessary, the UK Revolving Credit Loans) by the amount prepaidequal to such excess. Partial If on any date the aggregate principal amount of the UK Revolving Credit Exposure on such date exceeds the UK Revolving Credit Commitments then in effect, the UK Borrower shall immediately (and without notice or demand) prepay the UK Swing Line Loans (and, to the extent necessary, the UK Revolving Credit Loans) by the amount equal to such excess. If on any date the aggregate principal amount of the Incremental Sterling Loans exceeds the Incremental Sterling Credit Commitments, the UK Borrower shall immediately (and without notice or demand) prepay the Incremental Sterling Loans by the amount of such excess.
(f) All mandatory prepayments of Term Loans pursuant to this subsection 3.4(asubsections 10.2(b) and (c) shall be applied to the respective prepayment of the Domestic Term Loans, the UK Term Loans and the Secured Supplemental Loans (ratably between such Facilities and ratably among the remaining installments of principal of each thereof). In the event that any such Term amounts remain available for mandatory prepayments after payment of the Loans as set forth above in this clause (f), then:
(i) the Applicable Advance Rates shall thereafter be reduced (but not to less than the Basic Advance Rates) by the amount of such order excess and the Domestic Revolving Credit Loans and the UK Revolving Credit Loans shall be repaid to the extent that they exceed the Domestic Borrowing Base or the UK Borrowing Base (as the Borrower case may directbe) then in effect; and
(ii) any such amounts remaining after application in accordance with clause (i) above shall be applied to the prepayment of the Unsecured Supplemental Loans (ratably among the remaining installments of principal thereof). Partial All mandatory prepayments pursuant to this subsection 3.4(a) 10.2 shall be in multiples accompanied by payment of $1.0 million; provided that, notwithstanding accrued interest through the foregoing, the Term Loans may be date of such prepayment and any amounts payable under subsection 10.13. Amounts prepaid in their entirety.
(b) If on or after the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% account of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Domestic Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights of the Administrative Agent UK Term Loans and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Supplemental Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall may not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingreborrowed.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Remington Products Co LLC)
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 11:00 A.M., New York City time, one Business Day (or, in the case of Eurocurrency Swing Line Loans), and at least one Business Day’s by irrevocable notice by the Borrower to the Administrative Agent (by 11:00 A.M., New York City time, on the same Business Day) in the case of ABR Loans). Such , and three Business Days' irrevocable notice shall specify to the Administrative Agent in the case of the Eurodollar Loans, prior to such prepayment, specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Eurodollar Loans, ABR Loans or a combination thereof, and, if of a combination thereof, the principal amount allocable to each. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereofthereof on the date of receipt of such notice. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid3.11. Partial prepayments and accompanying reductions in the Revolving Credit Commitments (except (x) in the case of Term Swing Line Loans pursuant to this subsection 3.4(a) which shall be applied to in accordance with subsection 2.7 and (y) in the respective installments case of principal of such Term Revolving Credit Loans in such order as the Borrower may direct. Partial prepayments pursuant to this under subsection 3.4(a2.14(c)) shall be in multiples an aggregate principal amount of at least $1.0 million; provided that, notwithstanding the foregoing, the Term Loans may be prepaid in their entirety500,000.
(b) If on or after Unless the Closing Date the Borrower or any Restricted Subsidiary shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each caseRequired Lenders otherwise agree, the Borrower Revolving Credit Commitments shall prepay, in accordance be permanently reduced with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus of any Equity Offering by Holdings or any incurrence of Indebtedness by any Loan Party on or after the Closing Date (iiother than any Indebtedness permitted pursuant to subsection 7.2), provided however that, in the case of a Public Equity Offering by Holdings, the Net Proceeds may be used at the discretion of Holdings and the Borrower, including without limitation to (u) redeem, repurchase, defease or prepay or retire the portion PIK Preferred or other preferred stock of
(a) (except to the extent that the assets disposed of in such Asset Sale are replaced with Replacement Assets within 360 days following the date of such Asset Sale) and 7.6(b), in each case, to the extent that such Net Proceeds realized from any such Asset Sale (or series of related Asset Sales) in any fiscal year are greater than $1,000,000; provided Net Proceeds of any Asset Sale shall not be required to be applied to permanently reduce Revolving Credit Commitments pursuant to this subsection until such time as the aggregate amount of such Net Cash Proceeds above $1,000,000 not yet applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with exceeds $250,000. Each such prepayment to reduction shall be made on or before the date which is ten Business Day following Days after the date of receipt of any Loan Party receives such Net Cash Proceeds.
(c) If, after giving effect to any permanent reduction in the Revolving Credit Commitments pursuant to subsection 2.4 or 3.1(b), the aggregate principal amount of the Revolving Credit Loans then outstanding, when added to the then outstanding L/C Obligations and Swing Line Loans, would exceed the Revolving Credit Commitments as so reduced, then the Revolving Credit Loans and Swing Line Loans shall be prepaid and the Letters of Credit shall be cash collateralized or replaced to the extent of such excess. Nothing in Amounts to be applied pursuant to this subsection 3.4(b3.1(c) to the prepayment of Revolving Credit Loans and/or Swing Line Loans shall limit be applied, as applicable, first to reduce outstanding Revolving Credit Loans and/or Swing Line Loans which are ABR Loans. Any amounts remaining after each such application shall, at the rights option of the Borrower, be applied to prepay Revolving Credit Loans which are Eurodollar Loans immediately and/or shall be deposited in the Prepayment Account (as defined below). The Administrative Agent shall apply any cash deposited in the Prepayment Account allocable to Revolving Credit Loans to prepay Revolving Credit Loans which are Eurodollar Loans, in each case on the last day of the respective Interest Periods therefor (or, at the direction of the Borrower, on any earlier date) until all outstanding Revolving Credit Loans which are Eurodollar Loans have been prepaid or until all cash on deposit in the Prepayment Account (including, without limitation, interest earned thereon) with respect to such Loans has been exhausted. For purposes of this Agreement, the term "Prepayment Account" shall mean an account established by the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, over which the Administrative Agent shall have exclusive dominion and control, including the Lenders agree right of withdrawal for application in accordance with this subsection 3.1(c). The Administrative Agent will, at the request of the Borrower, invest amounts on deposit in the Prepayment Account in Cash Equivalents that mature prior to the incurrence last day of such Indebtedness will the applicable Interest Periods of the Eurodollar Loans to be prepaid, provided that (i) the Administrative Agent shall not constitute be required to make any investment that, in its sole judgment, would require or cause the Administrative Agent to be in, or would result in any, violation of any Requirement of Law and (ii) the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if a Default or Event of Default.
(c) On or before Default shall have occurred and be continuing. The Borrower shall indemnify the date Administrative Agent for any losses relating to the investments so that is fifteen Business Days following the 90th amount available to prepay Eurodollar Loans on the last day after the end of each fiscal year of the Borrower ending applicable Interest Periods therefor is not less than the amount that would have been available had no investments been made. Other than any interest earned on or after December 31, 2008 (each, an “ECF Payment Date”)such investments, the Borrower shallPrepayment Account shall not bear interest. Interest or profits, in accordance with subsections 3.4(e) if any, on such investments shall be deposited and (f), prepay reinvested and disbursed as described above. If the Term maturity of the Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid has been accelerated pursuant to subsection 3.4(a)Section 10, and the Administrative Agent shall first apply all amounts on deposit in the Prepayment Account to prepay any outstanding Revolving Credit Loans prepaid and/or Swing Line Loans and, second, to cash collateralize any outstanding Letters of Credit. Until funds in the Prepayment Account are applied to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facilityprepayment of any Loans, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant shall continue to subsection 3.4(a), be outstanding and any Revolving Loans prepaid interest shall continue to accrue thereon. The Borrower hereby grants to the extent accompanied by Administrative Agent, for its benefit and the benefit of the Lenders, a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (security interest in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant Prepayment Account to this subsection 3.4(c) for any prior ECF Payment Date) (secure the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financingObligations.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
Appears in 1 contract
Optional and Mandatory Prepayments. (a) The Borrower may at any time and from time to time prepay the Term Loans made to it it, in whole or in part, subject to subsection 3.12Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b)), upon at least three Business Days’ irrevocable notice by the Borrower to the Administrative Agent prior to 1:00 P.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurocurrency Eurodollar Loans), and or prior to 12:00 P.M., New York City time at least one Business Day’s irrevocable notice by the Borrower Day prior to the Administrative Agent date of prepayment (in the case of ABR Loans). Such notice shall specify specify, in the case of any prepayment of Term Loans, the applicable Tranche being repaid, and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, Eurodollar Loans or ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurocurrency Eurodollar Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may directSubsection 4.12. Partial prepayments pursuant to this subsection 3.4(aSubsection 4.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the any Term Loans Loan may be prepaid in their its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made on or prior to the first anniversary of the Closing Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b).
(bi) If The Borrower shall, in accordance with Subsection 4.4(c), prepay the Term Loans to the extent required by Subsection 8.4(b) (subject to Subsection 8.4(c)), (ii) if on or after the Closing Date Date, the Borrower or any of its Restricted Subsidiary Subsidiaries shall incur Incur Indebtedness for borrowed money (other than excluding Indebtedness permitted pursuant to subsection 7.1Subsection 8.1), then, in each case, the Borrower shall prepayshall, in accordance with subsections 3.4(e) and (fSubsection 4.4(c), prepay the Term Loans in an amount equal to (i) 100100.0% of the Net Cash Proceeds thereof minus (ii) the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights notice given to each Lender of the Administrative Agent Prepayment Date, as contemplated by Subsection 4.4(d), and (iii) the Lenders set forth Borrower shall, in Section 8accordance with Subsection 4.4(c), except that in prepay the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all Term Loans within 120 days following the last day of the Term Loans, termination of all Commitments hereunder and termination of immediately preceding Fiscal Year (commencing with the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower Fiscal Year ending on or after about December 31, 2008 2012) (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A1) 50.0% (xas may be adjusted pursuant to the last proviso of this clause (iii)) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year such Fiscal Year minus (ii2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to subsection 3.4(aSubsection 4.4(a) during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to Subsection 4.4(a) during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to Subsection 4.4(h) or the other clauses of this Subsection 4.4(b) shall be so designated), (y) any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilityABL Facility during such Fiscal Year (which, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtednessany event, minus shall not include any designated prepayment pursuant to clause (yz) below), and (z) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving FacilityABL Facility during the period beginning with the day following the last day of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(b) shall be so designated), in each case since the end of such fiscal year and on or prior to such ECF Payment Datecase, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other (including a revolving credit or working capital financingfacility); provided that such percentage in clause (1) above shall be reduced to 0% if the Consolidated Net Leverage Ratio as of the last day of the immediately preceding Fiscal Year was less than 5.75:1.00. Nothing in this Subsection 4.4(b) shall limit the rights of the Agents and the Lenders set forth in Section 9.
(c) Subject to the last sentence of Subsection 4.4(d) and Subsection 4.4(g), each prepayment of Term Loans pursuant to Subsections 4.4(a) and (b) shall be allocated pro rata among the Initial Term Loans, the Incremental Term Loans and the Extended Term Loans and shall be applied within each Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity); provided, that at the request of the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis.
(d) The Borrower shallshall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans (x) pursuant to Subsection 4.4(b)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to Subsection 4.4(b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(i), on or before the date specified in Subsection 8.4(b) and (ii) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(ii) or (iii), on or before the date specified in Subsection 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Subsection 4.4(d)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender shall be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement.
(e) Amounts prepaid on account of Term Loans pursuant to Subsection 4.4(a), (b) or (h) may not be reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(a) or (b) would result, after giving effect to the procedures set forth in this Agreement, in the Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid), to be held as security for the obligations of the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans (or such earlier date or dates as shall be requested by the Borrower) or (ii) make a prepayment of the Term Loans in accordance with subsections 3.4(eSubsection 4.4(a) with an amount equal to a portion (up to 100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans not immediately prepaid); provided that, in the case of either clause (i) or (ii) above, such unpaid Eurodollar Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and 3.4(f), prepay the Term Loans Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent required necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of Term Loans added pursuant to Subsections 2.6 and 2.8, as applicable.
(h) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
(i) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Subsection 4.4(h); provided that (x) at the time of such Discounted Term Loan Prepayment, after giving effect thereto, Total Liquidity is equal to or greater than $100.0 million, (y) the Borrower shall not initiate any action under this Subsection 4.4(h) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by subsection 7.4(b)(iithe Borrower on the applicable Discounted Prepayment Effective Date or (2) (subject at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to subsection 7.4(c))accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender. Any Term Loans prepaid pursuant to this Subsection 4.4(h) shall be immediately and automatically cancelled.
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Optional and Mandatory Prepayments. (a) The Borrower Subject to subsection 4.12, the Company may at any time and from time to time prepay the Term Loans made to it Loans, in whole or in part, subject to subsection 3.12, without premium or penalty, upon at least three Business Days’ by irrevocable notice by the Borrower to the Administrative Agent by 10:00 a.m., New York City time, on the same Business Day (or, in the case of Eurocurrency Swing Line Loans), and at least one Business Day’s by irrevocable notice by the Borrower to the Administrative Agent (by 12:00 noon, New York City time, on the same Business Day) in the case of ABR Alternate Base Rate Loans). Such , and three Business Days' irrevocable notice shall specify to the Administrative Agent in the case of Eurodollar Loans, specifying the date and amount of prepayment and whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination thereof, and, if a combination thereof, the principal amount allocable to eachprepayment. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the Company shall make such prepayment, and the payment amount specified in such notice shall be due and payable payable, on the date specified therein, together with (if a Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to subsection 3.12 and accrued interest to such date on the amount prepaid. Partial prepayments of Term Revolving Credit Loans pursuant to this subsection 3.4(a) shall be applied to the respective installments of principal of such Term Loans in such order as the Borrower may direct. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples an aggregate principal amount equal to the lesser of (A) (I) $2,000,000, or a whole multiple of $1.0 million; provided that1,000,000 in excess thereof with respect to Eurodollar Loans or (II) $1,000,000 or a whole multiple of $100,000 in excess thereof with respect to Alternate Base Rate Loans and (B) the aggregate unpaid principal amount of the Revolving Credit Loans, notwithstanding as the foregoing, the Term Loans case may be prepaid in their entiretybe.
(bi) If on or after If, subsequent to the Closing Date Amendment/Restatement Effective Date, the Borrower Company or any Restricted Subsidiary of its Subsidiaries shall incur or permit the incurrence of any Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 7.1), then, in each case, the Borrower shall prepay, in accordance with subsections 3.4(e) and (f), the Term Loans in an amount equal to (i8.1) 100% of the Net Cash Proceeds thereof minus (ii) shall be promptly applied toward the portion of such Net Cash Proceeds applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the rights permanent reduction of the Administrative Agent and the Lenders set forth in Section 8, except that in the case of a transaction resulting in a prepayment pursuant to this subsection 3.4(b) of all of the Term Loans, termination of all Commitments hereunder and termination of the LC Facility, the Administrative Agent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of DefaultRevolving Credit Commitments.
(c) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after December 31, 2008 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(e) and (f), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case during such fiscal year excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any Revolving Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Revolving Facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(c) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(c), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, any Special Purpose Financing or any other revolving credit or working capital financing.
(d) The Borrower shall, in accordance with subsections 3.4(e) and 3.4(f), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
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