Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except (i) regularly scheduled payments of interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect thereto, any prepayments (and related prepayment fees and associated costs) with respect to Subordinated Debt; (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Debt) except (i) regularly scheduled payments of principal, interest and fees, (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect thereto, any prepayments (and related prepayment fees and associated costs) with respect to Borrowed Money; (iii) prepayments arising from refinancing such Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(iv) and Section 10.2.8(b(iv) shall not include any other payments made in accordance with this Section 10.2.8. (m) By deleting Section 10.2.17(f) of the Loan Agreement in its entirety and by substituting the following in lieu thereof:
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Intertape Polymer Group Inc)
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any any:
(a) Subordinated Debt (other than Subordinated Debt under the TBC Note and the Third Lien Debt, except ) or any Refinancing Debt in respect thereof;
(b) Subordinated Debt under the TBC Note (or any Refinancing Debt in respect thereof) except:
(i) payments of principal in respect of such Subordinated Debt with net proceeds raised from a sale or issuance by Parent of its Equity Interests; provided that (x) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur and (y) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) (and a Senior Officer of Parent shall certify to Agent, not less than five (5) Business Days prior to the date of payment, that such conditions have been satisfied); and
(ii) regularly scheduled payments of interest and fees, but only to in respect of such Subordinated Debt for periods occurring after the extent permitted under any subordination agreement or subordination provisions (including, in the case Agents receipt of the Existing Subordinated Debtfinancial statements and other deliverables required under Sections 10.1.2(a), (b) and (c) for the subordination provisions Fiscal Year ending December 31, 2016; provided for in the Indenturethat (w) relating immediately prior to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect theretoto such payment, any prepayments (and related prepayment fees and associated costs) with respect to Subordinated Debt; (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Default or Event of Default has occurred or Overadvance exists at will occur, (x) for each of the time 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period), (y) such prepayment payments are permitted under any Subordination Agreement relating to such Debt and (z) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.
(c) The Third Lien Debt or would result therefromany Refinancing Debt in respect thereof, except with the proceeds of the Delayed Draw Term Loan on or about the date of the borrowing thereof; provided that (x) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur, (by) for each of the 30 days immediately prior to and after giving effect to such payment, ABL Availability is in an amount greater than 15% of the ABL Revolver Commitments (disregarding any decreased ABL Revolver Commitment amount during the Seasonal Period), and ABL US Availability is in an amount greater than 15% of the ABL US Revolver Commitments (disregarding any decreased ABL US Revolver Commitment amount during the Seasonal Period) and (z) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.
(d) Borrowed Money (other than (x) the Obligations and Subordinated Debt(y) except (i) regularly scheduled payments of principalthe ABL Revolver Obligations, interest and fees, (ii) so long as each subject to the terms of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect theretoIntercreditor Agreement; provided, any prepayments (and related prepayment fees and associated costs) with respect to Borrowed Money; (iii) prepayments arising from refinancing such Debt so long as however, that the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in ABL US Special Advance may only be repaid by the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(iv) and Section 10.2.8(b(iv) shall not include any other payments made Borrowers in accordance with this Section 10.2.8.
(m) By deleting Section 10.2.17(f) the definition of the “US Special Loan Amount” as defined in the ABL Revolver Loan Agreement as in effect on the date hereof) prior to its entirety and by substituting due date under the following agreements evidencing such Debt as in lieu thereof:effect on the Restatement Effective Date (or as amended thereafter with the consent of Agent).
Appears in 2 contracts
Sources: Term Loan, Guaranty and Security Agreement, Term Loan, Guaranty and Security Agreement (Turtle Beach Corp)
Restrictions on Payment of Certain Debt. (a) Make any payments (whether voluntary or mandatory, or a prepayment, redemption, repurchase, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except (i) regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; Debt (iiand a Senior Officer of Borrower Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied) so long as each and payments made to a Borrower in respect of a Permitted Originator Note;
(b) Make any payment with respect to a Permitted ABS Transaction (other than payments made with the proceeds of the Restricted Payment Conditions (PrepaymentsSecuritized Contracts of the corresponding Permitted ABS Transaction) is satisfied, both unless immediately before and after giving effect theretoto any such repayment no Default or Event of Default exists and Availability exceeds the greater of (x) $40,000,000 and (y) 10.0% of the Borrowing Base then in effect.
(c) Make any principal payments (whether voluntary or mandatory, any prepayments (and related prepayment fees and associated costsor a prepayment, redemption, repurchase, retirement, defeasance or acquisition) with respect to Subordinated Debt; (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than including the Obligations and Subordinated Debt) except HY Notes), except
(i) regularly scheduled payments of principal, interest principal with respect to Capital Leases and fees, Purchase Money Debt and scheduled payments at maturity of all Borrowed Money;
(ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect thereto, any prepayments (and related prepayment fees and associated costs) principal payments with respect to Borrowed Money; (iii) prepayments arising from refinancing such Debt so long as Money to the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in extent the aggregate amount of such payments during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Dateterm of this Agreement does not exceed $15,000,000, so long as immediately before and immediately after giving effect to any such payment no Default or Event of Default or Overadvance exists at exists;
(iii) the time full payment of any Purchase Money Debt or obligations under a Capital Lease using the proceeds from the sale of the Property subject to such prepayment Purchase Money Debt or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(ivCapital Lease;
(iv) and Section 10.2.8(b(iv) shall not include any other principal payments made in accordance with this Section 10.2.8.
respect to Borrowed Money so long as immediately before and immediately after giving effect to any such payment (mA) By deleting Section 10.2.17(fno Default or Event of Default exists and (B) the sum of (w) Qualified Cash, plus (x) Availability is greater than the greater of (I) 33% of the Loan Agreement in its entirety sum of (y) Qualified Cash, plus (z) the Borrowing Base and by substituting the following in lieu thereof:(II) $175,000,000.
Appears in 1 contract
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except (i) regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect thereto, any prepayments Debt (and related prepayment fees and associated costs) with respect a Senior Officer of Borrower Agent shall certify to Subordinated DebtAgent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Obligations, the Debt evidenced by the Senior Secured Notes Documents or any Senior Notes Refinancing Debt or the 2012 Senior Notes Debt) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of the Required Lenders); (c) Debt evidenced by the Senior Secured Notes Documents, any Senior Notes Refinancing Debt, or any 2012 Senior Notes Debt, except (i) regularly scheduled mandatory payments due thereunder as in effect on the Closing Date (or, with respect to the 2012 Senior Notes Debt, as in effect on the date of principalincurrence of such Debt, interest or as amended thereafter with the consent of the Required Lenders), and fees, (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect thereto, any voluntary prepayments (and related prepayment fees and associated costs) with respect to Borrowed Money; (iii) prepayments arising from refinancing on such Debt so long as the Refinancing Conditions are satisfied; and (ivA)(1) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at exists, (2) Excess Availability is no less than 50% of the time aggregate Revolver Commitments immediately after giving effect to any such prepayment, and (3) Borrowers shall have delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(A); or would result therefrom(B) if Excess Availability is less than 50% of the aggregate Revolver Commitments immediately after giving effect to any such prepayment, (1) no Event of Default exists, (2) Excess Availability is no less than 20% of the aggregate Revolver Commitments immediately after giving effect to any such prepayment, (3) on a pro forma basis the Fixed Charge Coverage Ratio, measured on a trailing twelve (12) month basis after giving effect to any such prepayment and recomputed for the most recent month for which financial statements have been delivered to Agent, is at least 1.0 to 1.0, and (4) Borrowers shall have delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(B); and (d) payments (other than those set forth in clause (a) above) on intercompany loans, except payments by an Obligor to a Borrower; provided, however, that for purposes of the foregoing clause (c) this Section 10.2.8, no mandatory prepayments shall be made to the extent such prepayments are required on account of sales of Revolver Priority Collateral. For clarification, payments by Parent under the Senior Secured Notes Documents and the documents governing the Senior Notes Refinancing Debt or the 2012 Senior Notes Debt shall not constitute a payment by Borrowers under guarantees of such Debt that would constitute a breach of this Section 10.2.8. Notwithstanding anything contained in this Agreement to the contrary, for purposes of claritydetermining the amount of a mandatory prepayment that shall be deemed to be required to be made on account of a sale of Revolver Priority Collateral, payments under Section 10.2.8(a)(ivsuch amount shall equal the lesser of (x) the total proceeds of such sale of Revolver Priority Collateral, and Section 10.2.8(b(iv(y) shall not include any other payments made the greater of (i) the value of such assets attributed to the Borrowing Base and (ii) net book value of such assets recorded on the applicable Obligor’s books in accordance with GAAP, in each case for this Section 10.2.8clause (y), as assessed on the date of such asset sale.”
(m) By deleting Section 10.2.17(f) 10.2.14 of the Loan Agreement is hereby amended and restated in its entirety and by substituting the following in lieu thereofto read as follows:
Appears in 1 contract
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any any
(a) Subordinated DebtDebt (other than the Existing Subordinated Debt and Debt under the TBC Note), except except:
(i) regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any Subordination Agreement relating to such Debt (and a Senior Officer of Obligor Agent shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied);
(ii) full repayment of all obligations under the Subordinated Debt in connection with a refinancing thereof if the Refinancing Conditions have been satisfied;
(b) Existing Subordinated Debt or Debt under the TBC Note except:
(i) regularly scheduled payments of interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both if immediately before and after giving effect thereto, to any prepayments such payment no Default or Event of Default exists or will occur (and related prepayment fees and associated costsa Senior Officer of Borrower Agent shall certify to Agent prior to the making of the payment that such condition has been satisfied),
(ii) full repayment of all obligations under the Existing Subordinated Debt in place on the Closing Date using the proceeds of a Liquidity Event which is consummated contemporaneously with respect to Subordinated Debt; such repayment,
(iii) prepayments arising from refinancing full or partial repayment of obligations under any Existing Subordinated Debt provided after the Closing Date using the proceeds of a Liquidity Event which is consummated contemporaneously with such repayment so long as (x) all Existing Subordinated Debt in place on the Refinancing Conditions Closing Date has been paid in full before such repayment, (y) such repayment is only made if the net proceeds of the Liquidity Event are satisfied; in excess of $30,000,000 and such repayment is in an amount not greater than such excess, and (z) at least $10,000,000 of the net proceeds of such Liquidity Event have been applied to repay the Obligations,
(iv) prepayments not to exceed, together full or partial repayment of the obligations under the TBC Note using the proceeds of a Second Lien Loan and contemporaneous with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Dateclosing of a Second Lien Loan, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (bx) Borrowed Money (other than the Obligations and Subordinated Debt) except (i) regularly scheduled payments of principal, interest and fees, (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both immediately before and after giving effect theretoto any such repayment, no Default or Event of Default exists or will occur and (y) immediately after giving effect to any prepayments such repayment, Availability (taking into account the application of the net proceeds of such Second Lien Loan to the Obligations) is in an amount not less than 20% of the Revolver Commitments (and related prepayment fees and associated costs) with respect a Senior Officer of Borrower Agent shall certify to Borrowed Money; (iii) prepayments arising from refinancing Agent prior to the making of the payment that such Debt so long as the Refinancing Conditions are conditions have been satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in and
(v) any other full or partial repayment of the aggregate during obligations under the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity DateTBC Note, so long as (x) immediately before and after giving effect to any such repayment no Default or Event of Default exists or Overadvance exists at will occur and (y) for each of the time of 30 days prior to giving effect so any such prepayment or would result therefrom. For purposes of clarityrepayment and immediately after giving effect thereto, payments under Section 10.2.8(a)(iv) and Section 10.2.8(b(iv) shall Availability is in an amount not include any other payments made in accordance with this Section 10.2.8.
(m) By deleting Section 10.2.17(f) less than 20% of the Loan Agreement in its entirety Revolver Commitments (and by substituting a Senior Officer of Borrower Agent shall certify to Agent prior to the following in lieu thereof:making of the payment that such conditions have been satisfied).
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Turtle Beach Corp)
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except (i) regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect thereto, any prepayments Debt (and related prepayment fees and associated costs) with respect a Senior Officer of Borrower Agent shall certify to Subordinated DebtAgent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Obligations, the Debt evidenced by the Senior Secured Notes Documents or any Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 2013 Senior Notes Debt) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of the Required Lenders); (c) Debt evidenced by the Senior Secured Notes Documents, any Senior Notes Refinancing Debt, any 2012 Senior Notes Debt, or any 2013 Senior Notes Debt, except (i) regularly scheduled mandatory payments due thereunder as in effect on the Closing Date (or, with respect to the 2012 Senior Notes Debt and 2013 Senior Notes Debt, as in effect on the date of principalincurrence of such Debt, interest or as amended thereafter with the consent of the Required Lenders), and fees, (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect thereto, any voluntary prepayments (and related prepayment fees and associated costs) with respect to Borrowed Money; (iii) prepayments arising from refinancing on such Debt so long as the Refinancing Conditions are satisfied; and (ivA)(1) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at exists, (2) Excess Availability is greater than an amount equal to 25% of the time aggregate Revolver Commitments immediately after giving effect to any such prepayment, and (3) Borrowers shall have delivered to Agent five Business Days’ prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(A); or would result therefrom. For purposes (B) if Excess Availability is less than or equal to an amount equal to 25% of claritythe aggregate Revolver Commitments immediately after giving effect to any such prepayment, (1) no Event of Default exists, (2) Excess Availability is greater than an amount equal to 17.5% of the aggregate Revolver Commitments immediately after giving effect to any such prepayment, (3) on a pro forma basis the Fixed Charge Coverage Ratio, measured on a trailing twelve (12) month basis after giving effect to any such prepayment and recomputed for the most recent month for which financial statements have been delivered to Agent, is greater than 1.0 to 1.0, and (4) Borrowers shall have delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(B); and (d) payments under Section 10.2.8(a)(iv(other than those set forth in clause (a) above) on intercompany loans, except (i) payments by an Obligor to a Borrower, and Section 10.2.8(b(iv(ii) shall not include any other payments repayment by Tapco of the Kleer Acquisition Loan so long as (A) such repayment is made solely using proceeds of a substantially contemporaneous capital contribution from Parent and (B) Borrowers have received capital contributions from Parent in an amount no less than an amount equal to the aggregate purchase consideration payable (including deferred payment obligations) in respect of the Kleer Acquisition in accordance with Section 10.1.10; provided, however, that for purposes of the foregoing clause (c) of this Section 10.2.8, no mandatory prepayments shall be made to the extent such prepayments are required on account of sales of Revolver Priority Collateral. For clarification, payments by Parent under the Senior Secured Notes Documents and the documents governing the Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 2013 Senior Notes Debt shall not constitute a payment by Borrowers under guarantees of such Debt that would constitute a breach of this Section 10.2.8. Notwithstanding anything contained in this Agreement to the contrary, for purposes of determining the amount of a mandatory prepayment that shall be deemed to be required to be made on account of a sale of Revolver Priority Collateral, such amount shall equal the lesser of (x) the total proceeds of such sale of Revolver Priority Collateral, and (y) the greater of (i) the value of such assets attributed to the Borrowing Base and (ii) net book value of such assets recorded on the applicable Obligor’s books in accordance with GAAP, in each case for this clause (y), as assessed on the date of such asset sale.
(m) By deleting Section 10.2.17(f) of the Loan Agreement in its entirety and by substituting the following in lieu thereof:
Appears in 1 contract
Restrictions on Payment of Certain Debt. Make any cash payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any any:
(a) Subordinated Debt (other than Debt under the TBC Note and the Third Lien Debt, except ) or any Refinancing Debt in respect thereof;
(b) Subordinated Debt under the TBC Note or any Refinancing Debt in respect thereof except:
(i) payments of principal in respect of such Subordinated Debt with net proceeds raised from a sale or issuance by Parent of its Equity Interests; provided that (x) immediately prior to and after giving effect to such payment, no Default or Event of Default has occurred or will occur and (y) for each of the 30 days immediately prior to and after giving effect to such payment, Availability is in an amount greater than 15% of the Revolver Commitments (disregarding any decreased commitment amount during the Seasonal Period), and US Availability is in an amount greater than 15% of the US Revolver Commitments (disregarding any decreased commitment amount during the Seasonal Period) (and a Senior Officer of Parent shall certify to Agent, not less than five (5) Business Days prior to the date of payment, that such conditions have been satisfied); and
(ii) regularly scheduled payments of interest and fees, but only to in respect of such Subordinated Debt for periods occurring after the extent permitted under any subordination agreement or subordination provisions (including, in the case Agents receipt of the Existing Subordinated Debtfinancial statements and other deliverables required under Sections 10.1.2(a) and (c) for the Fiscal Year ending December 31, the subordination provisions 2016; provided for in the Indenturethat (w) relating immediately prior to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect theretoto such payment, any prepayments (and related prepayment fees and associated costs) with respect to Subordinated Debt; (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Default or Event of Default has occurred or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Debt) except (i) regularly scheduled payments of principal, interest and feeswill occur, (iix) so long as for each of the Restricted Payment Conditions (Prepayments) is satisfied both before 30 days immediately prior to and after giving effect theretoto such payment, Availability is in an amount greater than 15% of the Revolver Commitments (disregarding any prepayments decreased commitment amount during the Seasonal Period), and US Availability is in an amount greater than 15% of the US Revolver Commitments (and related prepayment fees and associated costsdisregarding any decreased commitment amount during the Seasonal Period), (y) with respect such payments are permitted under the Subordination Agreement relating to Borrowed Money; (iii) prepayments arising from refinancing such Debt so long as the Refinancing Conditions are satisfied; and (ivz) prepayments not the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.3 on a pro forma basis after giving effect to exceed, together with all prepayments made pursuant such payment (as if such payment was consummated on the first day of the period of measurement) as determined for last day of month most recently ended prior to Section 10.2.8(a)(ivsuch payment (for the trailing twelve month period then-ended), $10,000,000 all based on calculations and assumptions acceptable to the Agent.
(c) The Third Lien Debtor any Refinancing Debt in respect thereof, except with the proceeds of the Delayed Draw Term Loan (as defined in the aggregate during Term Loan Agreement) on or about the period commencing on date of the Third Amendment Effective Date borrowing thereof; provided that (x) immediately prior to and ending on the Stated Maturity Dateafter giving effect to such payment, so long as no Default or Event of Default has occurred or Overadvance exists at will occur, (y) for each of the time 30 days immediately prior to and after giving effect to such payment, Availability is in an amount greater than 15% of the Revolver Commitments (disregarding any such prepayment or would result therefrom. For purposes decreased Revolver Commitment amount during the Seasonal Period), and US Availability is in an amount greater than 15% of clarity, payments under Section 10.2.8(a)(ivthe US Revolver Commitments (disregarding any decreased Revolver Commitment amount during the Seasonal Period) and (z) the Agent shall have received satisfactory evidence that the Borrowers are in compliance with each of the financial covenants set forth in Section 10.2.8(b(iv10.3 on a pro forma basis after giving effect to such payment (as if such payment was consummated on the first day of the period of measurement) shall not include any other payments made as determined for last day of month most recently ended prior to such payment (for the trailing twelve month period then-ended), all based on calculations and assumptions acceptable to the Agent.
(d) the US Special Advance Loan; provided that such advance may only be repaid by the Borrowers in accordance with this Section 10.2.8.the definition of the “US Special Loan Amount” as in effect on the date hereof) prior to its due date under the agreements evidencing such Debt as in effect on the Restatement Effective Date (or as amended thereafter with the consent of Agent); or
(me) By deleting Section 10.2.17(fTerm Loan Debt (except regularly scheduled payments and mandatory prepayments) if immediately before or after giving effect to such payment, a Default or an Event of the Loan Agreement in its entirety and by substituting the following in lieu thereof:Default exists.
Appears in 1 contract
Sources: Loan Agreement (Turtle Beach Corp)
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except (i) regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect thereto, any prepayments Debt (and related prepayment fees and associated costs) with respect a Senior Officer of Borrower Agent shall certify to Subordinated DebtAgent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied); (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Obligations, the Debt evidenced by the Senior Secured Notes Documents or any Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 20122013 Senior Notes Debt) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of the Required Lenders); (c) Debt evidenced by the Senior Secured Notes Documents, any Senior Notes Refinancing Debt, any 2012 Senior Notes Debt, or any 20122013 Senior Notes Debt, except (i) regularly scheduled mandatory payments due thereunder as in effect on the Closing Date (or, with respect to the 2012 Senior Notes Debt and 2013 Senior Notes Debt, as in effect on the date of principalincurrence of such Debt, interest or as amended thereafter with the consent of the Required Lenders), and fees, (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect thereto, any voluntary prepayments (and related prepayment fees and associated costs) with respect to Borrowed Money; (iii) prepayments arising from refinancing on such Debt so long as the Refinancing Conditions are satisfied; and (ivA)(1) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at exists, (2) Excess Availability is no lessgreater than 50an amount equal to 25% of the time aggregate Revolver Commitments immediately after giving effect to any such prepayment, and (3) Borrowers shall have delivered to Agent five Business Days’ prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(A); or would result therefrom. For purposes (B) if Excess Availability is less than 50or equal to an amount equal to 25% of claritythe aggregate Revolver Commitments immediately after giving effect to any such prepayment, (1) no Event of Default exists, (2) Excess Availability is no lessgreater than 20an amount equal to 17.5% of the aggregate Revolver Commitments immediately after giving effect to any such prepayment, (3) on a pro forma basis the Fixed Charge Coverage Ratio, measured on a trailing twelve (12) month basis after giving effect to any such prepayment and recomputed for the most recent month for which financial statements have been delivered to Agent, is at leastgreater than 1.0 to 1.0, and (4) Borrowers shall have delivered to Agent five Business Days prior written notice of any such prepayment accompanied by detailed calculations confirming that Borrowers are in compliance with the requirements set forth in this clause (c)(ii)(B); and (d) payments under Section 10.2.8(a)(iv(other than those set forth in clause (a) above) on intercompany loans, except (i) payments by an Obligor to a Borrower, and Section 10.2.8(b(iv(ii) shall not include any other payments repayment by Tapco of the Kleer Acquisition Loan so long as (A) such repayment is made solely using proceeds of a substantially contemporaneous capital contribution from Parent and (B) Borrowers have received capital contributions from Parent in an amount no less than an amount equal to the aggregate purchase consideration payable (including deferred payment obligations) in respect of the Kleer Acquisition in accordance with Section 10.1.10; provided, however, that for purposes of the foregoing clause (c) of this Section 10.2.8, no mandatory prepayments shall be made to the extent such prepayments are required on account of sales of Revolver Priority Collateral. For clarification, payments by Parent under the Senior Secured Notes Documents and the documents governing the Senior Notes Refinancing Debt, the 2012 Senior Notes Debt, or the 20122013 Senior Notes Debt shall not constitute a payment by Borrowers under guarantees of such Debt that would constitute a breach of this Section 10.2.8. Notwithstanding anything contained in this Agreement to the contrary, for purposes of determining the amount of a mandatory prepayment that shall be deemed to be required to be made on account of a sale of Revolver Priority Collateral, such amount shall equal the lesser of (x) the total proceeds of such sale of Revolver Priority Collateral, and (y) the greater of (i) the value of such assets attributed to the Borrowing Base and (ii) net book value of such assets recorded on the applicable Obligor’s books in accordance with GAAP, in each case for this clause (y), as assessed on the date of such asset sale.
(m) By deleting Section 10.2.17(f) of the Loan Agreement in its entirety and by substituting the following in lieu thereof:
Appears in 1 contract
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to (i) any Debt that is not permitted to be made by Section 10.2.8 of the First Lien Loan Agreement prior to the Restatement Date or (ii) the Senior Note Debt, the Mortgage Loan Debt, the Convertible Note Debt and Refinancing Debt of any of the Senior Note Debt and the Mortgage Loan Debt and the Convertible Note Debt (in each case whether before or after the Restatement Date) other than under this clause (ii) (a) Subordinated payments of interest, fees and expenses due in the ordinary course, (b) regularly scheduled principal payments with respect to the Mortgage Loan Debt and Refinancing Debt of the Mortgage Loan Debt, except (c) payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) of the Senior Note Debt, the Mortgage Loan Debt and the Convertible Note Debt derived solely from Refinancing Debt which meets the Refinancing Condition, (d) other payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) of Senior Note Debt, the Mortgage Loan Debt and the Convertible Note Debt and Refinancing Debt of the Senior Note Debt, the Convertible Note Debt and the Mortgage Loan Debt, so long as (i) regularly scheduled payments no Default or Event of interest Default shall have occurred and feesbe continuing or would result after giving effect to any such payment, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each at any time prior to the Bank Loan Termination Date, Excess Availability on the date of the Restricted Payment Conditions (Prepayments) is satisfied, both before and making of such payment on a pro forma basis after giving effect theretoto such payment, any prepayments and projected Excess Availability on a pro forma basis for the upcoming twelve month period (and related prepayment fees and associated costsafter giving effect to such payment) with respect is, in each case, greater than or equal to Subordinated Debt; 21% of the lesser of (x) the Tranche A Revolver Commitments plus the Tranche A-1 Revolver Commitments or (y) the Tranche A Borrowing Base, plus the Tranche A-1 Borrowing Base, (iii) prepayments arising from refinancing at any time prior to the Bank Loan Termination Date, as of the monthly fiscal period most recently then ended, the Consolidated Fixed Charge Coverage Ratio (on a pro forma trailing 12 fiscal month basis, giving effect to the making of such payment, and any Subordinated Debt so long under the First Lien Debt Documents incurred in connection therewith, determined as though such payment and Debt under the Refinancing Conditions are satisfied; First Lien Debt Documents had been incurred on the first day of the twelve (12) fiscal month period ended prior to such payment) is not less than 0.90 to 1.00, and (iv) prepayments the Borrowers shall have provided the Agent with a certificate not less than then (10) days prior to exceedthe making of such payment executed by a Senior Officer, together with all prepayments made pursuant to Section 10.2.8(b)(iv)evidencing compliance, $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Datea pro forma basis, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Debt) except (i) regularly scheduled payments of principal, interest and fees, (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect theretoto such payment, any prepayments with the requirements set forth in clauses (and related prepayment fees and associated costsd)(ii) with respect to Borrowed Money; (iii) prepayments arising from refinancing such Debt so long as the Refinancing Conditions are satisfied; and (ivd)(iii) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(ivabove), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(iv) and Section 10.2.8(b(iv) shall not include any other payments made in accordance with this Section 10.2.8.
(m) By deleting Section 10.2.17(f) of the Loan Agreement in its entirety and by substituting the following in lieu thereof:
Appears in 1 contract
Sources: Second Lien Loan and Security Agreement (Bon Ton Stores Inc)
Restrictions on Payment of Certain Debt. Make any cash payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any any:
(a) Subordinated DebtDebt or any Refinancing Debt in respect thereof (other than Debt under the TBC Note and any Refinancing Debt in respect thereof);
(b) Subordinated Debt under the TBC Note or any Refinancing Debt in respect thereof except the repayment in full of all obligations under the TBC Notes on or about the First Amendment Effectiveness Date; provided that (w) the aggregate amount of such repayment is not greater than $11,000,000, except (ix) regularly scheduled payments of interest and fees, but only immediately prior to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect theretoto such repayment, any prepayments (and related prepayment fees and associated costs) with respect to Subordinated Debt; (iii) prepayments arising from refinancing of any Subordinated Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Default or Event of Default has occurred or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Debt) except (i) regularly scheduled payments of principal, interest and feeswill occur, (iiy) so long as either (1) for each of the Restricted Payment Conditions (Prepayments) is satisfied both before 30 days immediately prior to and after giving effect theretoto such repayment, Availability is in an amount greater than 15% of the Revolver Commitments (disregarding any prepayments decreased commitment amount during the Seasonal Period) or (2) (I) for each of the 30 days immediately prior to and related prepayment fees after giving effect to such repayment, Availability is in an amount greater than 10% of the Revolver Commitments (disregarding any decreased commitment amount during the Seasonal Period) and associated costs(II) with respect Fixed Charge Coverage Ratio, determined on a pro forma basis after giving effect to Borrowed Money; the repayment (iiias if such repayment were consummated on the first day of the period of measurement), is not less than 1.25:1.00, measured on a trailing 12-month basis.
(c) prepayments arising from refinancing such The repayment in full of the Term Loan Debt on the First Amendment Effectiveness Date so long as the Refinancing Conditions are satisfied; and (ivw) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date amount of such payment does not exceed $12,500,000, (x) immediately prior to and ending on the Stated Maturity Dateafter giving effect to such payment, so long as no Default or Event of Default has occurred or Overadvance exists at will occur, (y) (A) for each of the time of 30 days immediately prior to and after giving effect to such payment, Availability is in an amount greater than $10,000,000 (disregarding any such prepayment or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(ivdecreased commitment amount during the Seasonal Period) and Section 10.2.8(b(iv(B) shall not include any other payments made in accordance with this Section 10.2.8.
Fixed Charge Coverage Ratio, determined on a pro forma basis after giving effect to the repayment (m) By deleting Section 10.2.17(f) as if such repayment were consummated on the first day of the Loan Agreement in its entirety and by substituting the following in lieu thereof:period of measurement), is not less than 1.25:1.00 measured on a trailing 12-month basis.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Turtle Beach Corp)
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) any Subordinated Debt, except (i) regularly scheduled payments of principal, interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such DebtDebt (and a Senior Officer of the Company shall certify to Agent, not less than five Business Days prior to the date of payment, that all conditions under such agreement have been satisfied or waived); (b) the Existing Senior Notes, other than (i) payment of regularly scheduled interest and reimbursement for fees and expenses of the trustee as provided therein, (ii) so long as each of in connection with replacing the Restricted Payment Conditions (Prepayments) is satisfiedExisting Senior Notes with Refinancing Debt, both before and after giving effect thereto, any prepayments (and related prepayment fees and associated costs) with respect to Subordinated Debt; (iii) prepayments arising from refinancing of any Subordinated Debt so long as provided that the Refinancing Conditions are satisfiedmet or (iii) in connection with replacing the Existing Senior Notes with transactions contemplated under the Second Lien Term Loan Agreement or the Third Lien Indenture; (c) the Second Lien Term Loans, other than (i) payment of regularly scheduled interest payments and reimbursement for fees and expenses as provided therein and (ivii) prepayments not to exceedin connection with replacing the Second Lien Notes with Refinancing Debt, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in provided that the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefromRefinancing Conditions are met; or (bd) Borrowed Money (the Third Lien Notes, other than the Obligations and Subordinated Debt) except (i) regularly scheduled payments capitalization of principalinterest with respect to each of the February 15, 2010, August 15, 2010 and February 15, 2011 interest and feespayment dates, (ii) so long as each payment of the Restricted Payment Conditions (Prepayments) is satisfied both before regularly scheduled interest payments thereafter and after giving effect thereto, any prepayments (and related prepayment reimbursement for fees and associated costs) with respect to Borrowed Money; expenses as provided therein, and (iii) prepayments arising from refinancing such Debt so long as in connection with replacing the Third Lien Notes with Refinancing Debt, provided that the Refinancing Conditions are satisfied; and (iv) prepayments not met. Notwithstanding anything to exceedthe contrary contained herein or in any other Loan Document, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in the aggregate during the period commencing no event shall there be any restriction on the Third Amendment Effective Date and ending on ability of Subsidiaries or Obligors to repay any intercompany Debt owed to the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(iv) and Section 10.2.8(b(iv) shall not include any other payments made in accordance with this Section 10.2.8Company.
(m) By deleting Section 10.2.17(f) of the Loan Agreement in its entirety and by substituting the following in lieu thereof:”
Appears in 1 contract
Sources: Loan and Security Agreement (Commercial Vehicle Group, Inc.)
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any (a) Subordinated Debt, except (i) regularly scheduled payments of interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for except as set forth in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect thereto, any prepayments Intercreditor Agreement or herein (and related prepayment fees and associated costs) with respect a Senior Officer of Borrower Agent shall certify to Subordinated Debt; (iii) prepayments arising from refinancing Agent in writing, not less than 5 Business Days prior to the date of any Subordinated Debt so long as the Refinancing Conditions are payment, that all conditions under such Intercreditor Agreement or hereunder have been satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) any Borrowed Money (other than the Obligations Obligations) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (or as amended thereafter with the consent of Agent). Notwithstanding the above:
(a) the Existing Subordinated Debt Lenders may (1) at any time exercise any and all rights under the Existing Subordinated Debt) except Debt Documents to convert or redeem any of the Existing Subordinated Debt Notes into common equity of the Borrower Agent, and (i) regularly scheduled payments of principal, interest and fees, (ii2) so long as each no Default or Event of Default exists or will exist as a result thereof, receive payment of principal and regularly scheduled interest, in cash, at the final scheduled maturity date of the Restricted Payment Conditions Existing Subordinated Debt Obligations; and
(Prepaymentsb) is satisfied both so long as no Default or Event of Default exists or will exist as a result thereof and immediately before and after giving effect theretoto such payment Availability exceeds $3,000,000, any prepayments the Existing Subordinated Debt Lenders shall have the right to cause the Borrower Agent to redeem, and the Borrower Agent shall redeem up to the following principal amount(s) of Existing Subordinated Debt Notes on each of the following redemption dates by delivering written notice of the exercise of such right to the Borrower Agent no later than the August 8th prior to the redemption dates: (i) up to $8,330,000 on August 31, 2006 (“First Redemption Date”), (ii) up to $9,230,000 on August 31, 2007 (“Second Redemption Date”), and related prepayment fees and associated costs) with respect to Borrowed Money; (iii) prepayments arising from refinancing up to $8,330,000 on September 2, 2008 (“Third Redemption Date”, and together with the First Redemption Date and the Second Redemption Date, collectively, the “Redemption Dates”).
(i) If the Existing Subordinated Debt Lenders elect to redeem any of the Existing Subordinated Debt Notes on the applicable Redemption Dates, the Existing Subordinated Debt Lenders will be required to first use at least $5,000,000 of cash collateral supporting the Existing Subordinated Debt Letter of Credit as repayment proceeds for the First Redemption Date and Second Redemption Date, respectively, to consummate the redemption; provided, that such Existing Subordinated Debt so long as Letter of Credit is automatically reduced by the Refinancing Conditions are satisfied; amount of any cash collateral which is released;
(ii) In the event the Borrower Agent is required to redeem any portion of the Existing Subordinated Debt Notes on one of the applicable Redemption Dates, which redemption, under the terms of the Existing Subordinated Debt Documents, (i) triggers the release of cash collateral for the Existing Subordinated Debt Letter of Credit and (ivii) prepayments not thereby reduces the Existing Subordinated Debt Letter of Credit by a corresponding amount of such released cash collateral, the Existing Subordinated Debt Lenders shall be permitted a right of redemption for an amount up to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), the additional $10,000,000 in the aggregate during the period commencing 3,330,000 then called for redemption on the Third Amendment Effective Date and ending on the Stated Maturity applicable Redemption Date, so long as (A) no greater than (1) $3,330,000 of redemption proceeds, on the First Redemption Date, and (2) $4,230,000 of redemption proceeds, on the Second Redemption Date, are derived from Borrowings hereunder, (B) the Borrower Agent has met the conditions referenced in Section 10.2.8(b)(iii) below, (C) with respect to the applicable Redemption Date, the Existing Subordinated Debt Lenders have used at least $5,000,000 of cash collateral securing the Existing Subordinated Debt Letter of Credit towards redemption of the Existing Subordinated Debt Notes on such specific Redemption Date (with the corresponding reduction to the Existing Subordinated Debt Letter of Credit), and (D) no Default or Event of Default or Overadvance exists at the time of any such prepayment then exists, or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(iv) and Section 10.2.8(b(iv) shall not include any other payments made in accordance with this Section 10.2.8.from such payment;
(miii) By deleting Section 10.2.17(fThe redemption conditions referenced above shall be: (i) with respect to the First Redemption Date, the Borrower Agent meeting one hundred percent (100%) of its budgeted EBITDA as disclosed to the Loan Agreement Agent on the date hereof for the trailing six-month period ending on June 30, 2006, as evidenced by the delivery of financial statements in compliance with Section 10.1.2 together with a certificate signed by the chief financial officer of the Borrower Agent certifying as to such evidence, and (ii) with respect to the Second Redemption Date, the Borrower Agent meeting the requirements set out in clause (i) above and meeting at least ninety percent (90%) of its entirety and budgeted EBITDA as disclosed to the Agent on the date hereof for the trailing twelve-month period ending on June 30, 2007, as evidenced by substituting the following delivery of financial statements in lieu thereof:compliance with Section 10.1.2 together with a certificate signed by the chief financial officer of the Borrower Agent certifying as to such evidence.
Appears in 1 contract
Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any the Senior Note Debt, the Mortgage Loan Debt and Refinancing Debt of the Senior Note Debt and the Mortgage Loan Debt other than (a) Subordinated Debtpayments of interest, except fees and expenses due in the ordinary course, (ib) regularly scheduled principal payments of interest and fees, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied, both before and after giving effect thereto, any prepayments (and related prepayment fees and associated costs) with respect to Subordinated the Mortgage Loan Debt and Refinancing Debt of the Mortgage Loan Debt; , (iiic) prepayments arising payments of the Senior Note Debt and Mortgage Loan Debt derived solely from refinancing of any Subordinated Refinancing Debt so long as which meets the Refinancing Conditions are satisfied; Condition and (ivd) prepayments not to exceedother payments of Senior Note Debt, together with all prepayments made pursuant to Section 10.2.8(b)(iv), $10,000,000 in Mortgage Loan Debt and Refinancing Debt of the aggregate during Senior Note Debt and the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity DateMortgage Loan Debt, so long as (i) where such payment is not made with proceeds of an offering of the equity securities of the Parent (A) no Default or Event of Default or Overadvance exists at the time of any such prepayment shall have occurred and be continuing or would result therefrom; after giving effect to any such payment, (B) Excess Availability on the date of the making of such payment, and projected Excess Availability for the upcoming twelve month period is, in each case, greater than or equal to $200,000,000, (bC) Borrowed Money as of the monthly fiscal period most recently then ended, the Consolidated Fixed Charge Coverage Ratio (other consolidated on a pro forma basis giving effect to the making of such payment) is not less than 1.5:1.0, and (D) the Obligations Borrowers shall have provided the Agent with a certificate not less than then (10) days prior to the making of such payment executed by a Senior Officer, evidencing compliance, on a pro forma basis, after giving effect to such payment, with the requirements set forth in clauses (d)(i)(A), (d)(i)(B) and Subordinated Debt(d)(i)(C) except above) prior to its due date under the agreements evidencing such Debt as in effect on the Closing Date (ior as amended thereafter with the consent of Agent) regularly scheduled payments of principal, interest and fees, (ii) so long as each where such payment is made with proceeds of an offering of the Restricted Payment Conditions equity securities of the Parent, (PrepaymentsA) is satisfied both before no Default or Event of Default shall have occurred and be continuing or would result after giving effect theretoto any such payment, any prepayments (B) Excess Availability on the date of the making of such payment, and related prepayment fees and associated costs) with respect projected Excess Availability for the upcoming twelve month period is, in each case, greater than or equal to Borrowed Money; (iii) prepayments arising from refinancing such Debt so long as the Refinancing Conditions are satisfied; $150,000,000 and (ivC) prepayments the Borrowers shall have provided the Agent with a certificate not less than then (10) days prior to exceedthe making of such payment executed by a Senior Officer, together evidencing compliance, on a pro forma basis, after giving effect to such payment, with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 the requirements set forth in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Date, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom. For purposes of clarity, payments under Section 10.2.8(a)(ivclauses (d)(ii)(A) and Section 10.2.8(b(iv(d)(ii)(B) shall not include any other payments made in accordance with this Section 10.2.8above).
(m) By deleting Section 10.2.17(f) of the Loan Agreement in its entirety and by substituting the following in lieu thereof:
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Restrictions on Payment of Certain Debt. Make any payments (whether voluntary or mandatory, or a prepayment, redemption, retirement, defeasance or acquisition) with respect to any the Senior Note Debt, the Mortgage Loan Debt, the Second Lien Debt and Refinancing Debt of the Senior Note Debt, the Mortgage Loan Debt and the Second Lien Debt other than (a) Subordinated payments of interest, fees and expenses due in the ordinary course, (b) regularly scheduled principal payments with respect to the Mortgage Loan Debt and Refinancing Debt of the Mortgage Loan Debt and the Second Lien Debt, except (c) payments of the Senior Note Debt, the Second Lien Debt and Mortgage Loan Debt derived solely from Refinancing Debt which meets the Refinancing Condition, (d) prepayments of the Second Lien Debt with the proceeds of asset sales to the extent the Required Lenders have waived or forgiven (by way of amendment, consent or otherwise) such requirement, and (e) other payments of Senior Note Debt, Mortgage Loan Debt, Second Lien Debt and Refinancing Debt of the Senior Note Debt, the Second Lien Debt and the Mortgage Loan Debt, so long as (i) regularly scheduled payments no Default or Event of interest Default shall have occurred and feesbe continuing or would result after giving effect to any such payment, but only to the extent permitted under any subordination agreement or subordination provisions (including, in the case of the Existing Subordinated Debt, the subordination provisions provided for in the Indenture) relating to such Debt; (ii) so long as each Excess Availability on the date of the Restricted Payment Conditions (Prepayments) is satisfied, both before and making of such payment on a pro forma basis after giving effect theretoto such payment, any prepayments and projected Excess Availability on a pro forma basis for the upcoming twelve month period (and related prepayment fees and associated costsafter giving effect to such payment) with respect is, in each case, greater than or equal to Subordinated Debt; 25% of the lesser of (x) the Tranche A Revolver Commitments plus the Tranche A-1 Revolver Commitments or (y) the Tranche A Borrowing Base, plus the Tranche A-1 Borrowing Base, (iii) prepayments arising from refinancing as of any Subordinated Debt so long the monthly fiscal period most recently then ended, the Consolidated Fixed Charge Coverage Ratio (on a pro forma trailing 12 fiscal month basis, giving effect to the making of such payment determined as though such payment occurred on the Refinancing Conditions are satisfied; first day of the twelve (12) fiscal month period ended prior to such payment) is not less than 1.1 to 1.0, and (iv) prepayments the Borrowers shall have provided the Agent with a certificate not less than then (10) days prior to exceedthe making of such payment executed by a Senior Officer, together with all prepayments made pursuant to Section 10.2.8(b)(iv)evidencing compliance, $10,000,000 in the aggregate during the period commencing on the Third Amendment Effective Date and ending on the Stated Maturity Datea pro forma basis, so long as no Event of Default or Overadvance exists at the time of any such prepayment or would result therefrom; or (b) Borrowed Money (other than the Obligations and Subordinated Debt) except (i) regularly scheduled payments of principal, interest and fees, (ii) so long as each of the Restricted Payment Conditions (Prepayments) is satisfied both before and after giving effect theretoto such payment, any prepayments with the requirements set forth in clauses (d)(ii) and related prepayment fees and associated costs(d)(iii) with respect above) prior to Borrowed Money; (iii) prepayments arising from refinancing its due date under the agreements evidencing such Debt so long as the Refinancing Conditions are satisfied; and (iv) prepayments not to exceed, together with all prepayments made pursuant to Section 10.2.8(a)(iv), $10,000,000 in the aggregate during the period commencing effect on the Third Amendment Effective Closing Date and ending on (or as amended thereafter with the Stated Maturity Date, so long as no Event consent of Default or Overadvance exists at the time of any such prepayment or would result therefromAgent).”
§2.7. For purposes of clarity, payments under Section 10.2.8(a)(iv) and Section 10.2.8(b(iv) shall not include any other payments made in accordance with this Section 10.2.810.2.
(m) By deleting Section 10.2.17(f) of the Loan Agreement in its entirety and by substituting the following in lieu thereof:
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