Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid. (ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment: (A) [reserved]; (B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B); (C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any); (D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any); (E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E); (F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.
Appears in 1 contract
Mandatory Prepayment. The outstanding Obligations shall be subject to prepayment as follows:
(a) If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any Collateral (other than the sale of Collateral (other than Real Estate, Capital Stock and Intellectual Property) in the ordinary course of business and the transfer of any Collateral among Stores and other locations of the Loan Parties), to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, provided that no Event of Default has occurred and is continuing, (i) If the proceeds therefrom are (a) utilized for purposes of replacing or repairing the assets in respect of which such proceeds were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds (or, in the case of any disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate, within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds) or (b) in the case of any disposition of Real Estate listed on Schedule 1.1(b), reinvested in additional Real Estate within twelve (12) months of the receipt of such proceeds or within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds and (ii) the aggregate amount at any time of such reinvested proceeds (A) in the Revolving Credit Exposure case of any such sale, transfer or other disposition of any such Collateral pursuant to a sale and leaseback transaction, is equal to or less than $10,000,000 and (B) in the case of any such sale, transfer or other disposition of such Collateral (other than pursuant to a sale and leaseback transaction and other than a disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate) is equal to or less than $10,000,000; or
(b) If on any date any Loan Party shall have received Net Proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party, to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds;
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (w)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f); and
(d) If, for any Revolving Lender or for all Revolving LendersFiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) exceeds the Revolving Credit Limit, Borrower shall immediately prepay ECF Percentage of such Excess Cash Flow minus (ii) the outstanding Revolving Loans by the principal amount of Term Loans optionally prepaid pursuant to Section 2.16 during such Fiscal Year toward the excess plus all accrued and unpaid interest prepayment of the Term Loans as set forth in SECTION 2.17(f) (it being understood that such payment for the Fiscal Year ending February 28, 2012 was made prior to the Amendment No. 1 Effective Date). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the amount so prepaiddate on which financial statements of the Borrower have been delivered pursuant to SECTION 5.01(a).
(iie) Reserved.
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that any prepayment of any Term Loans pursuant to SECTION 2.17(c) shall be applied to repay Term Loans of each Class with an earlier Maturity Date prior to being applied to repay any Term Loans of any other Class with a later Maturity Date (and, if two Classes of Term Loans have the same Maturity Date, shall be applied on a pro rata basis to such Classes). Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied first, to the remaining scheduled installments of principal of such Term Loans pursuant to SECTION 2.04 that are due within 24 months of such prepayment and thereafter to the remaining scheduled installments of principal of the Term Loans of such Class on a pro rata basis. Subject to the foregoing, outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No later than prepayment of LIBO Loans of any Class shall be permitted pursuant to this SECTION 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within five (5) Business Days following of receiving a written demand for such reimbursement which sets forth the earlier calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the date such amounts are received by, or for the account ofBorrower, the Borrower (or Administrative Agent shall hold all amounts required to be applied to LIBO Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable Loan Party) on or after the date hereof and LIBO Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit other Event of the Lenders in the form received with any necessary endorsement or assignment:Default).
(Ag) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, The Borrower shall prepay all Non-Converted Term B Loans on the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated CashAmendment No. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice1 Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Mandatory Prepayment. (i) If at any time Escrow Funds remain in the Revolving Credit Exposure Escrow Account after December 31, 2022 (for any Revolving Lender or for all Revolving Lenders) exceeds such later date as the Revolving Credit LimitAdministrative Agent may agree in its sole discretion), Borrower the Borrowers shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the Loans in accordance with Section 2.05(d) in an amount so prepaidequal to 100% of such remaining Escrow Funds.
(ii) No later than five (5) Within ten Business Days following the earlier any Disposition which qualify as Permitted Dispositions under clause (v) of the date definition of Permitted Disposition by any Loan Party or its Subsidiaries, the Borrowers shall prepay the outstanding principal amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such amounts are Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received byby all Loan Parties and their Subsidiaries (and not paid to the Administrative Agent as a prepayment of the Loans) shall exceed $200,000 for all such Dispositions in any Fiscal Year (and, or for the account ofavoidance of doubt, only by the Borrower (or amount in excess thereof); provided that the applicable Loan Party) on or after Borrowers shall not be required to make such prepayment to the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
extent (A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Cash Proceeds to replace the damaged assets are reinvested in assets property that are subject to a security interest in favor of Collateral Agent and that are is useful in the business of the Loan Parties, then subject to the Borrower shall be permitted to defer such prepayment for a period security and perfection requirements in accordance with the Loan Documents, within 90 days of up to 365 days after the date the applicable Loan Party receives of such Net Proceeds; provided further that Disposition (or, if such Net Proceeds amounts are not committed to be so reinvested within 365 such 90-day period, such amounts are actually so reinvested within 180 days from following the applicable Loan Party’s receipt of such Net Proceeds Cash Proceeds) (it being understood that such prepayment shall be due immediately upon the expiration of such 90-day period or if so committed to be reinvested within such 365180-day period, reinvested within 180 days after such 365-day periodas applicable), then the applicable and (B) no Event of Default exists or would result therefrom. Nothing contained in this Section 2.05(c)(ii) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii).
(iii) Within one Business Day following receipt of Net Cash Proceeds from the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Permitted Indebtedness) or upon an Equity Issuance of Permitted Cure Equity to exercise a Cure Right pursuant to Section 9.02, the Borrowers shall prepay the outstanding amount of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith. The provisions of this Section 2.05(c)(iii) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(iv) Within five Business Days following the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, the Borrowers shall prepay the outstanding principal of the Loans in accordance with Section 2.05(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith to the extent that the aggregate amount of Net Cash Proceeds received by such Person (and not paid to the Administrative Agent as a prepayment of the Loans) shall exceed $200,000 for all such Extraordinary Receipts in any Fiscal Year (and, for the avoidance of doubt, only by the amount in excess thereof); provided that the Borrowers shall not be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject such prepayment to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
extent (CA) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Cash Proceeds are reinvested in assets property that are subject to a security interest in favor of Collateral Agent and that are is useful in the business of the Loan Parties, then subject to the Borrower shall be permitted to defer such prepayment for a period security and perfection requirements in accordance with the Loan Documents, within 90 days of up to 365 days after the date the applicable Loan Party receives of such Net Proceeds; provided further that Extraordinary Receipt (or, if such Net Proceeds amounts are not committed to be so reinvested within 365 such 90-day period, such amounts are actually so reinvested within 180 days from following the applicable Loan Party’s receipt of such Net Proceeds Cash Proceeds) (it being understood that such prepayment shall be due immediately upon the expiration of such 90-day period or if so committed to be reinvested within such 365180-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepaymentas applicable), and (2B) any voluntary prepayments no Event of the Reovlving Facility solely Default exists or would result therefrom.
(v) The Borrowers shall provide notice to the extent such prepayment is accompanied Administrative Agent by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses 2:00 p.m. (New York time) at least one (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days Day prior to each making any mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice2.05(c).
Appears in 1 contract
Sources: Financing Agreement (Colonnade Acquisition Corp. II)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower financial statements are required to deliver their be delivered pursuant to Section 6.01(a) and the related Compliance Certificate and has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Group Term Loans (allocated among the Group Term Loans at the discretion of the Borrower) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2ended on December 31, 20222017), Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus (B) the sum of (1) all voluntary prepayments of the Group Term Loans made under any Group Credit Agreement (including any voluntary prepayments of any term loans under any Group Credit Agreement prior to the First Amendment Effective Date) (provided that, with respect to Discounted Voluntary Prepayments under any Group Credit Agreement, only the actual amount of cash used to consummate such prepayment shall be included in such calculation) during such period fiscal year and after the end of such fiscal year but prior to the required date of such prepayment (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in such prepayment or purchase after the end of the fiscal year of year, together with such prepayment)prepayment described in clause (2) below, the “After Year-End Payment”) and (2) any all voluntary prepayments of Group Revolving Credit Loans during such fiscal year and after the Reovlving Facility solely end of such fiscal year but prior to the required date of such prepayment to the extent the Group Revolving Credit Commitments are permanently reduced by the amount of such prepayment is accompanied by a permanent reduction payments, in the case of each of the Reovlving Commitments, in each case for the immediately preceding clauses (1) and (2) solely ), to the extent such prepayments are not funded with the proceeds of Indebtedness (other than, with respect to clause (1) only, any Indebtedness incurred pursuant to any Revolving Credit Loan or repurchases are financed with Internally Generated Cash. Borrower Swing Line Loan) or any Specified Equity Contribution; provided that (a) the ECF Percentage shall deliver be 25% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to Administrative Agent a 3.25:1.00 and greater than 2.75:1.00 and (b) the ECF Percentage shall be 0% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to 2.75:1.00; provided, further, that solely for the purpose of this Section 2.05(b)(i), following the making of each After Year-End Payment, (i) the Consolidated First Lien Net Leverage Ratio shall be re-calculated giving Pro Forma Effect to such After Year-End Payment as if such payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory were made during the fiscal year in respect of which the prepayment pursuant to this Section 3.3(b2.05(b)(i) is made and (ii) such After Year-End Payment taken into account in the calculation of the required prepayment amount above for one fiscal year shall be disregarded for any subsequent calculations for future fiscal years. Notwithstanding anything set forth above, if for any fiscal year the amount calculated pursuant to clause (A) above is less than the amount calculated pursuant to clause (B) above (such amount, the “Excess Prepayments”), the cumulative amount of such Excess Prepayments shall be carried over in calculations for the following fiscal year (but not subsequent years) on a dollar-for-dollar basis.
(ii) (A) Subject to Section 2.05(b)(ii)(B), if (1) any Covenant Entity Disposes of any property or assets pursuant to Section 7.05(h), (i), (l), (n) (other than a Permitted Sale Leaseback between Nexstar Guarantors that are not the Holding Companies), (o)(y) or (u) (in each case of (o)(y) and (u), to the extent provided thereunder) or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), of an aggregate principal amount of Term Loans equal to the percentage represented by the quotient of (x) the Outstanding Amount of Term Loans at such time divided by (y) the sum of the Outstanding Amount of the Term Loans at such time and the amount of any other Indebtedness constituting term loans or term notes outstanding at such time that is secured by a Lien ranking pari passu with the Liens securing the Term Loans and requiring a like prepayment from such Net Cash Proceeds (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent shall promptly notify each Lender of such noticeits intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing).
Appears in 1 contract
Mandatory Prepayment. (ia) The provisions contained in Clause 2.8(b) (Unscheduled Mandatory Reductions) and Clause 2.9(b)(ii) (Mandatory Prepayments) of the Multicurrency Agreement shall apply mutatis mutandis to this Agreement, such that the Bank receives its Pro Rata Share of any such repayment.
(b) Without prejudice to any other reductions in the Facility Amount which are required to be made pursuant to the terms of this Agreement, the Borrowers shall reduce the Bank's commitments under the RBS Group Facilities by (Pounds)[] by February 28, 2002, by a further (Pounds)[] by February 28, 2003 and a further by (Pounds)[] by May 31, 2003. Once reduced in accordance with this Clause 8.4(b), the relevant commitments may not be increased.
(c) If at any time the Revolving Credit Exposure (for any Revolving Lender reason the outstanding obligations to the Bank under the RBS Group Facilities exceed its commitments, because of any limitation set forth in this Agreement or for all Revolving Lenders) exceeds otherwise, the Revolving Credit Limit, Borrower Borrowers shall immediately prepay Advances and/or deposit cash in an interest bearing cash collateral account held with the outstanding Revolving Loans by Bank in an aggregate amount equal to such excess (all interest accruing on such account being for the amount account of the excess plus all accrued and unpaid interest on the amount so prepaidBorrowers prior to Enforcement).
(iid) No later than five (5) Business Days following the earlier Any part of the date such amounts are received byRBS Group Facilities which is prepaid pursuant to this Clause 8.4 may not be reborrowed, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Bank's commitment shall be paid to Administrative Agent reduced accordingly, unless the prepayment was made because for the ratable benefit a period of the Lenders five consecutive business days, APW and its Subsidiaries held in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds aggregate collected funds in excess of $2,000,000 individually or in 10,000,000.
(e) If on any Determination Date, the Bank shall have determined that the aggregate over Sterling Amount of its outstanding obligations under the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided thatRBS Group Facilities exceeds its commitment under such facilities, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject due to a security interest change in favor applicable rates of Collateral Agent exchange between Sterling and that are useful in the business of the Loan PartiesOptional Currencies, then the Borrower Bank shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject give notice to the mandatory Parent that a prepayment provisions is required and the Borrowers shall make a prepayment so as to ensure that the Sterling Amount of this Section 3.3(b)(ii)(B);the outstanding obligations under the RBS Group Facilities no longer exceeds the Bank's commitment under such facilities.
(Cf) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent If and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments extent that would be any payment is properly due pursuant to Section 3.2(a)(ii) in this Clause 8.4, the fiscal year of such prepayment)Bank is hereby irrevocably and unconditionally authorised, and (2) unless prohibited from doing so by the Intercreditor Agreement, to debit any voluntary prepayments account of the Reovlving Facility solely Borrowers in order to the extent effect such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticepayment.
Appears in 1 contract
Sources: Amendment Agreement (Apw LTD)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Parties, then definition of “Permitted Dispositions,” to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to the Asset Sale Percentage of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within eighteen (18) months of the receipt of such proceeds (or within twenty-four (24) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within eighteen (18) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to the Asset Sale Percentage of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within eighteen (18) months of the receipt of such proceeds (or within twenty-four (24) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within eighteen (18) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 3.3(b)(ii)(E2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to Section 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in Section 2.17(f) and the amount expended by the Borrower pursuant to Sections 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date by on which the compliance certificate of the Borrower are required has been delivered pursuant to deliver their Compliance Certificate and financial statements for the applicable fiscal year Section 5.01(d).
(e) [Reserved].
(f) Any prepayment of any Term Loans pursuant to Sections 8.1(a2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that (i) any prepayment of any Term Loans pursuant to Section 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the Borrower. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow, the amount of the prepayment of the Term Loans required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such Qualifying Secured Debt then outstanding and (d)iii) any Lender may elect to decline its share of any prepayment pursuant to clause (a), commencing with (b) or (d) above by giving notice to the fiscal year ending January 2Administrative Agent within one Business Day following the date the Borrower gives notice of such prepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”). Subject to the foregoing, 2022outstanding Prime Rate Loans of any Class shall be prepaid before outstanding Term Benchmark Loans of such Class are prepaid. No prepayment of Term Benchmark Loans of any Class shall be permitted pursuant to this Section 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within fifteen (15) Business Days of receiving a written demand for such reimbursement which sets forth the calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall hold all amounts required to be applied to Term Benchmark Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable Term Benchmark Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) The Borrower shall prepay all Non-Converted Term B-6 Loans on the Term Loans in Amendment No. 11 Effective Date.
(h) Notwithstanding any other provisions of this Section 2.17, (A) to the extent that any or all of the Excess Cash Flow of a Foreign Subsidiary is prohibited or delayed by any requirement of law from being repatriated to the Loan Parties, an amount equal to the applicable portion of Excess Cash Flow Percentage multiplied so affected will not be required to be applied to repay Term Loans at the times provided in clause (d) above, as the case may be, but only so long, as the applicable requirement of law will not permit repatriation to the Loan Parties (the Loan Parties hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit repatriation), and once a repatriation of any of such affected Excess Cash Flow for is permitted under the applicable requirement of law, an amount equal to such fiscal year then ended minus Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the sum of (1) voluntary prepayments repayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loans, and (2B) any voluntary prepayments of the Reovlving Facility solely to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow of a Foreign Subsidiary could have an adverse tax consequence with respect to such prepayment is accompanied by a permanent reduction of the Reovlving CommitmentsExcess Cash Flow, in each case for the preceding clauses (1) and (2) solely an amount equal to the extent such prepayments or repurchases are financed with Internally Generated CashExcess Cash Flow so affected may be retained by the applicable Foreign Subsidiary. Borrower For the avoidance of doubt, nothing in this Agreement, including Section 2.17 shall deliver be construed to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior require any Foreign Subsidiary to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticerepatriate cash.
Appears in 1 contract
Mandatory Prepayment. (a) Subject to paragraph (b) below, if MCE at any time receives any Compensation, the Borrowers shall, on the last day of the first Interest Period to end after such receipt, prepay Loans in an aggregate principal amount equal to the amount of that Compensation (having promptly converted it into Dollars if received in any other currency or in non-cash form). Any such prepayment shall be applied against such Loans as the Facility Agent may designate.
(b) Paragraph (a) above shall not apply to any Compensation constituted by proceeds of insurance in respect of physical damage which are to be applied in reinstatement of the Borrowing Base Asset in respect of which they were received (or in reimbursing MCE for expenditure already made by it, in accordance with the terms of the Project Documents and the Finance Documents, for the purposes of such reinstatement) provided that no Default is subsisting. MCE shall notify the Facility Agent of the relevant incident promptly upon becoming aware of it and its proposal for reinstatement.
(c) Subject to paragraph (d) below, if, at any time before the B/C Discharge Date, MOCE receives any proceeds of any dividend or other distribution, or of any payment or repayment of borrowings, paid by Madison Turkey or MOTI, the Borrowers shall, on the last day of the first Interest Period to end after such receipt, prepay Loans outstanding under Tranche B and/or C in an aggregate principal amount equal to the amount of that receipt (having promptly converted it into Dollars if received in any other currency).
(d) Paragraph (c) above shall not apply in respect of any particular proceeds to the extent that MOCE demonstrates to the satisfaction of the Majority Banks, before the proceeds in question are received by it, that:
(i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limitimmediately upon such receipt, Borrower shall immediately prepay the outstanding Revolving Loans by the it will declare and pay a dividend of an amount of the excess plus all accrued and unpaid interest on the amount so prepaid.equal to those proceeds;
(ii) No later than five (5) Business Days following the earlier proceeds of that dividend are required by MPI in order to meet overheads of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders Group incurred in the form received with any necessary endorsement or assignment:ordinary course of business; and
(Aiii) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over amount of all such dividends declared and/or paid during the term of this 6 months' period ending on the next Calculation Date, when aggregated with all amounts payable under the Management Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing during that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall does not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of exceed $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice1,000,000.
Appears in 1 contract
Sources: Revolving Credit Facility (Toreador Resources Corp)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Partiesdefinition of “Permitted Dispositions”, then to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, provided that (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelve (12) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(Eapplied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to SECTION 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in SECTION 2.17(f) and the amount expended by the Borrower pursuant to SECTIONS 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date on which the compliance certificate of the Borrower has been delivered pursuant to SECTION 5.01(d).
(e) [Reserved].
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that (i) any prepayment of any Term Loans pursuant to SECTION 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the Borrower. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied to the remaining scheduled installments of principal of such Term Loans pursuant to SECTION 2.04 as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow, the amount of the prepayment of the Term Loans required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such Qualifying Secured Debt then outstanding and (iii) any Lender may elect to decline its share of any prepayment pursuant to clause (a), (b) or (d) above by giving notice to the Administrative Agent within one Business Day following the date the Borrower gives notice of such prepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”). Subject to the foregoing, outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No prepayment of LIBO Loans of any Class shall be permitted pursuant to this SECTION 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within fifteen (15) Business Days of receiving a written demand for such reimbursement which Borrower are sets forth the calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall hold all amounts required to deliver their Compliance Certificate be applied to LIBO Loans of a particular Class in a Cash Collateral Account and financial statements for will apply such funds to the applicable fiscal year pursuant to Sections 8.1(aLIBO Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) and (d)), commencing with the fiscal year ending January 2, 2022, The Borrower shall prepay all Non-Converted Term B-23 Loans on the Term Loans in Amendment No. 45 Effective Date.
(h) Notwithstanding any other provisions of this SECTION 2.17, (A) to the extent that any or all of the Excess Cash Flow of a Foreign Subsidiary is prohibited or delayed by any requirement of law from being repatriated to the Loan Parties, an amount equal to the applicable portion of Excess Cash Flow Percentage multiplied so affected will not be required to be applied to repay Term Loans at the times provided in clause (d) above, as the case may be, but only so long, as the applicable requirement of law will not permit repatriation to the Loan Parties (the Loan Parties hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit repatriation), and once a repatriation of any of such affected Excess Cash Flow for is permitted under the applicable requirement of law, an amount equal to such fiscal year then ended minus Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the sum of (1) voluntary prepayments repayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loans, and (2B) any voluntary prepayments of the Reovlving Facility solely to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow of a Foreign Subsidiary could have an adverse tax consequence with respect to such prepayment is accompanied by a permanent reduction of the Reovlving CommitmentsExcess Cash Flow, in each case for the preceding clauses (1) and (2) solely an amount equal to the extent such prepayments or repurchases are financed with Internally Generated CashExcess Cash Flow so affected may be retained by the applicable Foreign Subsidiary. Borrower For the avoidance of doubt, nothing in this Agreement, including SECTION 2.17 shall deliver be construed to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior require any Foreign Subsidiary to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticerepatriate cash.
Appears in 1 contract
Mandatory Prepayment. (i) If at Immediately upon any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained Disposition by any Loan Party with respect or its Subsidiaries pursuant to reimbursements due to loss of cash (whether as a result of theftSection 6.02(c), natural disaster or otherwise) shall not be and subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% terms of the cash Net Proceeds from Intercreditor Agreement, the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower Borrowers shall prepay the Term outstanding principal amount of the Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments 100% of the Term Loans made during Net Cash Proceeds received by such period Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to the Agent as a prepayment of the Loans) shall exceed $1,000,000 for all such Dispositions in any Fiscal Year. Nothing contained in this subsection (i) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to in accordance with Section 3.2(a)(ii6.02(c).
(ii) in Upon the fiscal year loss, destruction or taking by condemnation of such prepayment)any Collateral, and (2) any voluntary prepayments subject to the terms of the Reovlving Facility solely Intercreditor Agreement, the Borrowers shall prepay the outstanding principal of the Loans in an amount equal to 100% of the Net Cash Proceeds of the insurance or other proceeds received by any Loan Party in connection therewith, PROVIDED, that, except during the continuance of an Event of Default, the insurance or other proceeds received by any Borrower in connection therewith shall not be required to be so prepaid on such date to the extent such prepayment is accompanied by proceeds are used to replace or restore the properties or assets used in a permanent reduction Permitted Business in respect of which such proceeds were paid if the Administrative Borrower delivers a certificate to the Agents within 30 days of such event stating that such proceeds shall be used to replace or restore any such properties or assets to be used in a Permitted Business within a period specified in such certificate not to exceed 365 days after the receipt of such proceeds (which certificate shall set forth estimates of the Reovlving Commitments, in each case for the preceding clauses (1proceeds to be so expended) and (2) solely if all or any portion of such proceeds not so applied to the extent repayment of the Loans are not so used within the period specified in the relevant certificate furnished pursuant hereto, such prepayments remaining portion shall prepay the outstanding principal of the Loans on the last day of such specified period.
(iii) Upon the issuance or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than 11:00 a.m. New York City time at least two Permitted Indebtedness), or the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Capital Stock (2) Business Days prior to each mandatory prepayment other than pursuant to stock option plans for employees, officers and directors), and subject to the terms of the Intercreditor Agreement, the Borrowers shall prepay the outstanding amount of the Loans in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith. The provisions of this subsection (iii) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(iv) Except as set forth in Section 3.3(b) 2.05(b)(ii), upon the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts in excess of $1,000,000 in any Fiscal Year, and Administrative Agent subject to the terms of the Intercreditor Agreement, the Borrowers shall promptly notify each Lender prepay the outstanding principal of the Loans in an amount equal to 100% of such noticeExtraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
Appears in 1 contract
Sources: Financing Agreement (Value City Department Stores Inc /Oh)
Mandatory Prepayment. Subject to the third sentence of this Section 2(c), if United sells, directly or indirectly, (i) If at any time New UPC Common Stock or assets sold by UPC to United, the Revolving Credit Exposure purchase of which New UPC Common Stock or assets was taken into account for purposes of calculating the Deferral Amount (for any Revolving Lender such New UPC Common Stock or for all Revolving Lendersassets, "DEFERRAL AMOUNT PROPERTY") exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
or (ii) No later than five any Non-Cash Consideration (5as defined below) that (A) constitutes proceeds (in one transaction or a series of transactions) of Deferral Amount Property and (B) was received in a Qualifying Sale (as defined below) (any such Non-Cash Consideration, "QUALIFYING Proceeds"), United shall, within two Business Days following the earlier such sale, make a prepayment of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans Notes in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for net proceeds of such fiscal year then ended minus sale. For purposes of calculating the sum amount of (1) voluntary prepayments such net proceeds, if any consideration received in such sale consists of consideration other than cash such consideration shall be valued at its fair market value at the time of the Term Loans made during consummation of such period sale. If a sale of Deferral Amount Property or Qualifying Proceeds has been approved by the required vote of the Board of Directors of United and the affirmative vote of a majority of the Class C Directors (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) as defined in the fiscal year Restated Certificate of Incorporation of United) or, if there are no Class C Directors at the time of such prepaymentapproval, of the Liberty Directors (as defined in the Standstill Agreement, dated January 30, 2002, among United, Liberty, Liberty Global, Inc. and Liberty UCOMA, LLC) (such a sale, a "QUALIFYING SALE"), and (2) any voluntary prepayments United shall not be required to make such a prepayment of the Reovlving Facility solely Notes to the extent that the consideration received in such prepayment is accompanied by a permanent reduction Qualifying Sale consists of the Reovlving Commitments, in each case for the preceding clauses consideration other than cash or Cash Equivalents (1) and (2) solely to the extent such "NON-CASH CONSIDERATION"). Any prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b2(c) shall be credited first toward interest then accrued on the Notes and Administrative Agent the remainder, if any, shall promptly notify each Lender of such noticebe credited toward principal.
Appears in 1 contract
Mandatory Prepayment. Subject in each case to the terms of the Intercreditor Agreement:
(ia) If at any time Citadel Cinemas exercises the Revolving Credit Exposure Purchase Option (for any Revolving Lender or for all Revolving Lenders) exceeds as defined in the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofLease Agreement), the Borrower shall prepay all Obligations in full on the Purchase Option Closing Date (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders as defined in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)Lease Agreement); provided that, if within 20 days after the date of such Casualty Event, Borrower Citadel Cinemas shall notify Administrative Agent in writing that it wishes fail or refuse to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Partiesclose, then the Borrower shall have no obligation to prepay as herein set forth; and
(b) If the Borrower shall receive and, pursuant to the terms of the Lease Agreement, be permitted entitled to defer retain any insurance proceeds resulting from damage to any of its Assets (including proceeds of insurance maintained by Citadel Cinemas), or proceeds resulting from any Taking (as defined in the Lease Agreement) or shall receive a payment pursuant to clause (i) of paragraph (c) of Section 19 of the Lease Agreement, the Borrower shall use the full amount of such prepayment sums, after payment of any out-of-pocket expenses incurred by the Borrower in connection therewith, to pay (i) first, any outstanding principal amount of the Nationwide Indebtedness, and (ii) second, any outstanding principal amount of the Indebtedness under this Agreement; provided, however, that, with the prior written approval of Nationwide (which it may elect to grant or withheld in its sole discretion), the Borrower may apply all of such sums to prepay the principal Indebtedness outstanding hereunder until paid in full, in which event all such excess shall be applied in reduction of the principal balance of the Nationwide Indebtedness; provided, further, that, if at the time of the Borrower's receipt of any of the aforesaid sums, there is no amount then outstanding hereunder or less than the full amount has been drawn hereunder, the Borrower shall utilize such sums to prepay other Indebtedness (or distribute such sums to its sole Member for such use) or the Nationwide Indebtedness and, to the extent that such sums are applied in reduction of the principal of such other Indebtedness (or so used by such Member), the Commitment hereunder shall be reduced dollar for dollar.
(c) If the Acquisition Cost (as defined in the Lease Agreement) is reduced by the Acquisition Cost Adjustment (as defined in the Lease Agreement) as a period result of up the termination of the Sub-Management Agreement, then (i) the Commitment shall be reduced by an amount equal to 365 the lesser of the Acquisition Cost Adjustment and the unused Commitment and (ii) if the amount of the reduction under Section 2.6(c)(i) is less than the Acquisition Cost Adjustment, then (A) the Borrower, within 30 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements adjustment for the applicable fiscal year pursuant to Sections 8.1(a) and (d))Acquisition Cost Adjustment is made under the Lease Agreement, commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in pay an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments excess of the Term Loans made during such period (other than voluntary prepayments Acquisition Cost Adjustment over the amount of the reduction in the Commitment under Section 2.6(c)(i) to be applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii(I) in first, any outstanding principal amount of the fiscal year of such prepayment)Nationwide Indebtedness, and (2II) second, any voluntary prepayments outstanding principal amount of the Reovlving Facility solely Indebtedness under this Agreement; provided, however, that, with the prior written approval of Nationwide (which it may elect to grant or withheld in its sole discretion), the extent Borrower may apply all of such prepayment is accompanied by a permanent sums to prepay the principal Indebtedness outstanding hereunder until paid in full, in which event all such excess shall be applied in reduction of the Reovlving Commitmentsprincipal balance of the Nationwide Indebtedness, in each case for the preceding clauses (1) and (2B) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower Commitment shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender be reduced by the amount of such noticeLoans as so prepaid.
Appears in 1 contract
Sources: Credit Facility Agreement (Reading International Inc)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Parties, then definition of “Permitted Dispositions,” to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelve (12) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 3.3(b)(ii)(E2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to Section 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in Section 2.17(f) and the amount expended by the Borrower pursuant to Sections 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date by on which the compliance certificate of the Borrower are required has been delivered pursuant to deliver their Compliance Certificate and financial statements for the applicable fiscal year Section 5.01(d).
(e) [Reserved].
(f) Any prepayment of any Term Loans pursuant to Sections 8.1(a2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that (i) any prepayment of any Term Loans pursuant to Section 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the Borrower. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow, the amount of the prepayment of the Term Loans required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such Qualifying Secured Debt then outstanding and (d)iii) any Lender may elect to decline its share of any prepayment pursuant to clause (a), commencing with (b) or (d) above by giving notice to the fiscal year ending January 2Administrative Agent within one Business Day following the date the Borrower gives notice of such prepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”). Subject to the foregoing, 2022outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBOTerm Benchmark Loans of such Class are prepaid. No prepayment of LIBOTerm Benchmark Loans of any Class shall be permitted pursuant to this Section 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within fifteen (15) Business Days of receiving a written demand for such reimbursement which sets forth the calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall hold all amounts required to be applied to LIBOTerm Benchmark Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable LIBOTerm Benchmark Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) The Borrower shall prepay all Non-Converted Term B-5 Loans on the Term Loans in Amendment No. 9 Effective Date.
(h) Notwithstanding any other provisions of this Section 2.17, (A) to the extent that any or all of the Excess Cash Flow of a Foreign Subsidiary is prohibited or delayed by any requirement of law from being repatriated to the Loan Parties, an amount equal to the applicable portion of Excess Cash Flow Percentage multiplied so affected will not be required to be applied to repay Term Loans at the times provided in clause (d) above, as the case may be, but only so long, as the applicable requirement of law will not permit repatriation to the Loan Parties (the Loan Parties hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit repatriation), and once a repatriation of any of such affected Excess Cash Flow for is permitted under the applicable requirement of law, an amount equal to such fiscal year then ended minus Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the sum of (1) voluntary prepayments repayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loans, and (2B) any voluntary prepayments of the Reovlving Facility solely to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow of a Foreign Subsidiary could have an adverse tax consequence with respect to such prepayment is accompanied by a permanent reduction of the Reovlving CommitmentsExcess Cash Flow, in each case for the preceding clauses (1) and (2) solely an amount equal to the extent such prepayments or repurchases are financed with Internally Generated CashExcess Cash Flow so affected may be retained by the applicable Foreign Subsidiary. Borrower For the avoidance of doubt, nothing in this Agreement, including Section 2.17 shall deliver be construed to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior require any Foreign Subsidiary to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticerepatriate cash.
Appears in 1 contract
Mandatory Prepayment. (ia) If at At any time that the Revolving Credit Exposure (for Borrowers -------------------- and/or any Revolving Lender Subsidiary shall have received Net Cash Proceeds that, together with all other Net Cash Proceeds previously received by Borrowers and/or any Subsidiary and not remitted to the Agent, equal or for all Revolving Lenders) exceeds exceed $25,000, the Revolving Credit Limit, Borrower Borrowers shall immediately prepay remit to the outstanding Revolving Loans by the Agent an amount equal to 100% of the excess plus all accrued and unpaid interest on the amount so prepaidsuch Net Cash Proceeds; provided, however, that with respect to any Net Cash Proceeds from any damage to, or loss, destruction or condemnation of Assets, Section 2.10(c) will govern.
(iib) No later than five Immediately upon receipt by either Borrower and/or any Significant Subsidiary of any Financing Proceeds, the Borrowers shall remit to the Agent an amount equal to 100% of the Net Financing Proceeds.
(5c) As promptly as practicable, but in any event within two Business Days following the earlier of the date such amounts are received byof receipt by either Borrower and/or any Significant Subsidiaries of any proceeds due to damage to, or for the account loss, destruction or condemnation of Assets net of actual out-of-pocket costs of recovery (collectively, "Loss Proceeds"), the Borrower (or shall remit to the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid Agent an amount equal to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (such Loss Proceeds, excluding such portion, if any)); provided that, if within 20 days after the date of such Casualty Eventproceeds (such portion, Borrower shall notify Administrative the "Asset Restoration Amount") that the Borrowers represent to the Agent in writing that it wishes will be used within 90 days of receipt of such Loss Proceeds (or such longer period as may be consented to reinvest such Net Proceeds to replace by the damaged Agent) for rebuilding, repairing or replacing the damaged, destroyed or condemned Assets with productive assets in assets that are subject to of a security interest in favor of Collateral Agent and that are useful kind then used or usable in the business of the Loan PartiesBorrowers and their Subsidiaries; provided, then the Borrower however, that if such property constituted Collateral, any such replacement property shall be permitted made subject to defer such prepayment for a period the Lien of up to 365 days after the date the applicable Loan Party receives such Net ProceedsSecurity Documents; and provided further that if such Net Proceeds proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of put to such Net Proceeds (or if so committed to be reinvested use within such 365-90- day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party Borrower shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject remit to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) Agent an amount equal to 100% of any Net such Loss Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);not so utilized.
(Dd) 100% As promptly as possible, but in any event within two Business Days following receipt by either Borrower and/or any Significant Subsidiary of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted tax refund which is not required to be incurred pursuant promptly applied by the Borrower and/or any of its Subsidiaries to Section 9.1)the payment of future tax liabilities, plus the Applicable Premium (if any);
(E) Borrower shall remit to the Agent an amount equal to 100% of the cash Net Proceeds from the Disposition aggregate amount of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate such tax refunds in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice100,000.
Appears in 1 contract
Sources: Credit Agreement (Thermatrix Inc)
Mandatory Prepayment. (i) If at When any time Borrower sells or otherwise disposes of any Collateral after the Revolving Credit Exposure (for Amendment No. 7 Effective Date, other than any Revolving Lender sale or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans other disposition of Collateral permitted by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
clauses (ii) No later than five through (5x) Business Days following of Section 7.1(c) hereof, Borrowers shall repay the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans Advances in an amount equal to the applicable Excess Cash Flow Percentage multiplied net cash proceeds of such sale (i.e., gross cash proceeds less the reasonable costs of such sale or other disposition, any taxes paid or payable by Excess Cash Flow any Borrower as a result of such sale or other disposition, any Indebtedness or other obligation secured by the Collateral subject to such sale or other disposition which is repaid in connection with such sale or other disposition, and reserves for contingent obligations such fiscal year then ended minus as purchase price adjustments and indemnification obligations required by the sum terms of the related purchase agreement), such repayments to be made promptly but in no event more than one (1) voluntary prepayments Business Day following receipt of such net cash proceeds, and until the date of payment, such net cash proceeds shall be held in trust for Agent. Notwithstanding the foregoing, so long as no Default or Event of Default then exists, no prepayment of any Advances shall be required by this Section 2.23 with the net cash proceeds of any sale or other disposition of Collateral if a Borrower has notified the Agent promptly but in no event more than one (1) Business Day following receipt of such net cash proceeds that it intends to use such net cash proceeds within 360 days of such sale or other disposition to make Capital Expenditures for or in respect of fixed assets or improvements, replacements, substitutions or additions to fixed assets that are or will become part of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in Collateral. Promptly after the fiscal year end of such prepayment)360-day period, and (2) any voluntary prepayments of the Reovlving Facility solely Borrowers shall notify the Agent whether the Borrowers have used such net cash proceeds for such purposes and, to the extent such prepayment is accompanied by a permanent reduction of net cash proceeds have not been so used, shall repay the Reovlving Commitments, Advances in each case for the preceding clauses (1) and (2) solely an amount equal to the extent net cash proceeds not so used. The foregoing shall not be deemed to be implied consent to any such prepayments or repurchases are financed with Internally Generated Cashsale otherwise prohibited by the terms and conditions hereof. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment Repayments pursuant to this Section 3.3(b2.23 shall be applied (i) first, to the outstanding principal installments of the Term Loan on a pro rata basis (allocated among Eurodollar Rate Loans and Domestic Rate Loans as determined by the Borrowers) and Administrative Agent shall promptly notify each Lender (ii) second to the remaining Advances (allocated among Eurodollar Rate Loans and Domestic Rate Loans as determined by the Borrowers), subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the terms hereof.”
(l) Section 3.1 of such notice.the Loan Agreement is hereby amended and restated in its entirety to provide as follows:
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Hutchinson Technology Inc)
Mandatory Prepayment. (ia) If Any and all principal of the Notes remaining unpaid, together with all interest accrued but unpaid thereon, automatically and unconditionally shall be due and payable in full in cash on the Final Maturity Date.
(b) In the event of a Change of Control, each Investor shall have the option to require the Company to repurchase all the Notes held by such Investor at any time a purchase price in cash equal to the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the then outstanding Revolving Loans by the principal amount of the excess Notes plus the Applicable Prepayment Premium, together with all interest accrued and unpaid interest on such Notes through the amount so prepaid.
date of repurchase. The Company shall give the Investors notice (iia "CHANGE OF CONTROL NOTICE") No of any transaction that would result in a Change of Control not less than thirty (30) days prior to the anticipated date of the consummation of such transaction (but in no event later than five (5) the third Business Days Day following the earlier Company becoming aware thereof). Any Investor may exercise its right to require the Company to repurchase the Notes held by it by delivering written notice of such exercise (a "REPURCHASE NOTICE") to the Company within twenty (20) days after receipt of the Change of Control Notice. Within 15 days after the first date of receipt of a Repurchase Notice by the Company (the "REPURCHASE NOTICE DATE"), the Company shall give a notice to all other Investors advising them of the receipt by the Company of such Repurchase Notice, together with a copy of such Repurchase Notice. The date upon which the Company shall so advise such other Holders is herein called the "COMPANY NOTICE DATE". Within 15 days after the Company Notice Date, each such other Investor also may give a Repurchase Notice to the Company and each such Repurchase Notice shall be deemed given as of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.Repurchase Notice
Appears in 1 contract
Sources: Securities Purchase Agreement (Carrizo Oil & Gas Inc)
Mandatory Prepayment. (i) If at any time from and after the Revolving Credit Exposure Closing Date: (i) the Loan Party or GGP, Inc. merges or consolidates with another Person and the Loan Party is not the surviving entity, or (ii) the Loan Party or any Consolidated Subsidiary or any Minority Holding sells, transfers, assigns, conveys or suffers foreclosure as to assets, the book value of which (computed in accordance with GAAP but without deduction for depreciation), in the aggregate of all such sales, transfers, assignments, foreclosures or conveyances exceeds twenty percent (20%) of the then Capitalization Value, or (iii) the portion of Capitalization Value attributable to the aggregate Limited Minority Holdings (exclusive of Limited Minority Holdings existing as of the Closing Date) of the Loan Party and their Consolidated Subsidiaries exceeds twenty percent (20%) of the then Capitalization Value, or (iv) the Management Company ceases to provide property management and leasing services to at least seventy-five percent (75%) of the total number of Real Properties in which the Loan Party or their Subsidiaries has an ownership interest, excluding any Revolving Lender or for all Revolving Lenders) exceeds such Real Properties that are Limited Minority Holdings (the Revolving Credit Limitdate any such event shall occur being the "Prepayment Date"), the Borrower shall be required to prepay the Loans in their entirety as if the Prepayment Date were the Termination Date. The Borrower shall immediately prepay make such prepayment together with interest accrued to the outstanding Revolving Loans by the amount date of the excess plus all accrued and unpaid interest prepayment on the principal amount so prepaid. In connection with the prepayment of any Loan prior to the maturity thereof, the Borrower shall also pay any applicable expenses pursuant to Section 5.2(f). Each such prepayment shall be applied to prepay ratably the Loans of the Lenders. As used in this Section 4.1(d)(i) only, the phrase "sells, transfers, assigns or conveys" shall not include (i) sales or conveyances between or among Loan Party and any Consolidated Subsidiaries, or (ii) mortgages secured by Real Property, or (iii) sales or conveyances of Securities representing interests in or obligations of the Loan Party or newly-formed Subsidiaries or Minority Holdings in connection with the acquisition of interests in Real Property, or (iv) sales or conveyances of non-mall assets of JP Realty, Inc. and its Subsidiaries.
(ii) No later than five If (5A) Business Days following the earlier an Event of Default shall occur under Section 10.12(e) hereof and for so long as it shall be continuing, then, in addition to all other rights and remedies of the date Administrative Agent and the Lenders hereunder in respect of such amounts are received byEvent of Default, or (B) the ratio as of the first day of a calendar quarter of (i) Combined EBITDA for the account ofimmediately preceding calendar quarter to (ii) Fixed Charges shall be less than 1.6 to 1.0, then until such time as such ratio shall equal or exceed 1.6 to 1.0 measured as of the first day of a subsequent calendar quarter for the immediately preceding four calendar quarters, the Borrower shall apply all External Revenues, within thirty (30) days after receipt thereof, to pay or prepay, as the applicable Loan Party) case may be, on a pro rata basis, all Total Adjusted Outstanding Unsecured Indebtedness for borrowed money, including, without limitation, the Loans then outstanding hereunder; provided, however, that no such application of External Revenues, nor any demand therefor or after acceptance thereof by the date hereof Administrative Agent, the Lenders or any other lender, shall result in any waiver, release, limitation or impairment of any Obligation of the Borrower, or of any right, remedy or recourse of the Administrative Agent and the end Lenders, in connection with an Event of Default as described in clause (A) of this Section.
(iii) Immediately upon receipt by GGP, Inc. or a Loan Party of any election periods set forth belowExternal Revenues at any time other than as described in Section 4.1(d)(ii) above, the following amounts Borrower shall be paid to Administrative Agent for repay the ratable benefit of the Lenders Loans in the form received with any necessary endorsement or assignmentan amount calculated as follows:
(A) [reserved];if at the time such External Revenues are received the amount of Credit Obligations outstanding hereunder is more than $150,000,000, the amount of such External Revenues which must be used to repay Loans shall equal 80% of such External Revenues.
(B) 100if at the time such External Revenues are received the amount of Credit Obligations outstanding hereunder is equal to or less than $150,000,000, the amount of such External Revenues which must be used to repay Loans shall equal 70% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeExternal Revenues.
Appears in 1 contract
Sources: Term Credit Agreement (General Growth Properties Inc)
Mandatory Prepayment. (a) Borrower shall (x) prepay the Term Loans until paid in full and (y) thereafter repay the Revolving Loans, in each case, at the following times and in the following amounts:
(i) If at concurrently with the receipt by Borrower or any time the Revolving Credit Exposure (for Restricted Subsidiary of any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit LimitNet Cash Proceeds from any Disposition, Borrower shall immediately prepay the outstanding Revolving Loans by the in an amount equal to such Net Cash Proceeds, it being understood that any portion of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier Net Cash Proceeds of the date such amounts are received by, or for the account of, the a Disposition that Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid Restricted Subsidiary intends to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds use to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested Disposition within 180 days after such 365-day period)Disposition with assets performing the same or similar function, then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject deemed to have been received by Borrower or such Restricted Subsidiary until the mandatory prepayment provisions expiration of this Section 3.3(b)(ii)(B)such 180 day period without reemployment of such amounts;
(Cii) 100% concurrently with the receipt by Holdings, Borrower or any Restricted Subsidiary of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Cash Proceeds from the any issuance of Debt issued by a Loan Party its equity securities (excluding any other Debt permitted to be incurred unless made pursuant to Section 9.17.10), plus the Applicable Premium (if any);in an amount equal to such Net Cash Proceeds; and
(Eiii) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) 100 days after the date end of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds each Fiscal Year (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day periodcommencing with Fiscal Year 2003), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by of Excess Cash Flow for such fiscal year then ended minus Fiscal Year.
(b) If on any day the sum of (1) voluntary prepayments Revolving Outstandings exceed Borrowing Availability, whether pursuant to a reduction of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due Revolving Loan Commitment pursuant to Section 3.2(a)(ii) 2.9.2 or otherwise, Borrower shall immediately prepay Revolving Loans and/or cash collateralize the outstanding Letters of Credit in the fiscal year of such prepayment)a manner acceptable to Agent, and (2) any voluntary prepayments or do a combination of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitmentsforegoing, in each case for the preceding clauses (1) and (2) solely an amount sufficient to the extent eliminate such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeexcess.
Appears in 1 contract
Mandatory Prepayment. (i) If If, at any time prior to the Revolving Credit Exposure full repayment or full conversion of all amounts owed under this Debenture, the Company or any of its Subsidiaries receives cash proceeds from the issuance of equity or indebtedness (for any Revolving Lender other than the issuance of other Debentures), in one or for all Revolving Lendersmore financing transactions, whether publicly offered or privately arranged (including, without limitation, pursuant to the Arena ELOC), the Company shall, within one (1) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount Business Day of the excess plus all accrued and unpaid interest on Company or the amount so prepaid.
applicable Subsidiary’s receipt of such proceeds, inform the Holder of such receipt via written notice (ii) No later than a “Mandatory Prepayment Notice”), whereupon the Holder shall have the right in its sole discretion to require, by written notice to the Company delivered within five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end Holder’s receipt of any election periods set forth such Mandatory Prepayment Notice, that the Company immediately apply, subject to the 20% limit below, the following amounts shall be paid up to Administrative Agent for the ratable benefit thirty percent (30%) of the Lenders in the form gross cash proceeds received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt financing transaction to redeem a portion of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions outstanding principal amount of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any Debenture for cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments 115% of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would portion of the outstanding principal amount of this Debenture being be due pursuant to Section 3.2(a)(ii) in the fiscal year redeemed plus 100% of such prepayment), accrued but unpaid interest thereon and (2) any voluntary prepayments all liquidated damages and other amounts then due in respect of the Reovlving Facility solely to the extent such prepayment is accompanied by Debenture (a permanent reduction of the Reovlving Commitments“Mandatory Prepayment Exercise Notice”). The Company shall, in each case for the preceding clauses within one (1) and Business Day of the Company’s receipt of a Mandatory Prepayment Exercise Notice, use the portion of the gross cash proceeds received from the applicable financing transaction indicated in the Mandatory Prepayment Exercise Notice (2not to exceed 20%) solely to redeem the Company’s then outstanding obligations under the Debentures as provided in this Section 6(a); provided, such gross cash proceeds shall be applied to redeem all of the Debentures then outstanding pro rata in proportion to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City respective outstanding principal amount of each Debenture at the time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticethe Holder delivers the applicable Mandatory Prepayment Exercise Notice.
Appears in 1 contract
Sources: Convertible Security Agreement (Safe & Green Development Corp)
Mandatory Prepayment. The Borrower shall prepay the Loans as follows and in the manner provided in the Funding Documents:
(a) in the event that the aggregate amount of property and casualty insurance proceeds or other compensation proceeds for loss or damage (excluding business interruption insurance proceeds) to an asset (including by expropriation or governmental action) received by the Borrower during any Fiscal Year (i) If at any time in excess of one million Dollars ($1,000,000) is not applied to the Revolving Credit Exposure repair or replacement of assets insured thereby where such funds will be spent within one hundred-eighty (for any Revolving Lender 180) days (or for all Revolving Lenderssuch other longer period as OPIC may agree in its sole discretion) exceeds after receipt by the Revolving Credit LimitBorrower, Borrower shall immediately prepay the outstanding Revolving Loans by in the amount of the excess plus all accrued any amounts not so applied and unpaid interest on the amount so prepaid.
(ii) No later equal to or less than five one million Dollars (5$1,000,000) Business Days following if the earlier Borrower has not certified to OPIC within thirty (30) days (or such other longer period as OPIC may agree in its sole discretion) after receipt by the Borrower that the Borrower’s failure to apply such amount to the repair or replacement of assets insured thereby will not impair the Project, result in a failure to meet Contracted Plant Capacity or a breach of any of the date such amounts are received byBorrower’s obligations under the Project Documents, or for in the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end amount of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved]not so applied;
(Bb) 100% in the event there are performance liquidated damages paid pursuant to the Supply Agreement or the Coordination Contract, in the amount of any cash Net Proceeds such damages;
(c) in excess the event there is a purchase payment made by KPLC pursuant to Clause 10 of $2,000,000 individually the PPA, in the amount equal to the lesser of (i) the Secured Obligations and (ii) such purchase payment;
(d) in the event there is a downward revision of the Contracted Plant Capacity (as contemplated in Clause 9.8A of the PPA, including following any repeated Contracted Plant Capacity Test conducted due to a failed Contracted Plant Capacity Test pursuant to the final sentence of Clause 9.10 of the PPA) such that the Contracted Plant Capacity following such downward revision is less than the Required Contracted Plant Capacity, by an amount sufficient to restore the projected ratio of Cash Flow to Debt Service to the projected level set forth in the then current Financial Model. Any prepayment under this clause (d) shall be made by utilizing funds on deposit in the Equity Sub-Account or in the aggregate over Equity Distribution Account until the term projected ratio of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any))Cash Flow to Debt Service has been so restored; provided thatprovided, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such no mandatory prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make be made under this clause (d) if the projected ratio of Cash Flow to Debt Service in any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding year during the foregoing, Net Proceeds obtained by any remaining term of the Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster is 1.7:1 or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B)higher;
(Ce) 100% of unless otherwise agreed by OPIC, in the event the Borrower receives any Net Sale Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds proceeds from the Disposition of any assets Certified Emissions Reductions pursuant to Section 9.4(b), Section 9.4(ethe CER Documents) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of two hundred and fifty thousand Dollars ($2,000,000 250,000) resulting from one or more Dispositions in any fiscal year (plus of all or any part of the Applicable Premium (if any)); provided thatProperty of the Borrower, if within forty-five (45) days after in the date amount of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful Sale Proceeds; and
(f) in the business of the Loan Parties, then event the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after receives any Termination Payment or Expropriation Proceeds, in the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum lesser of (1i) voluntary prepayments of the Term Loans Secured Obligations and (ii) such Termination Payment or Expropriation Proceeds, as the case may be. Prepayments under this Section 2.05 shall be subject to any Redemption Premium or other amounts payable pursuant to the Funding Documents and shall be applied in the same manner as if made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) 2.04 (Voluntary Prepayment), except that no Prepayment Premium shall be due. For purposes of Section 2.05(a), the prepayment shall be applied against payments due to OPIC taking into account the Redemption Premium, if payable pursuant to the Funding Documents in the fiscal year of connection with such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.
Appears in 1 contract
Mandatory Prepayment. The Principal Debt is subject to mandatory prepayment from time to time as follows:
(i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) Facility A Commitment Usage ever exceeds the Revolving Credit LimitFacility A Commitment, or if the Facility C Principal Debt ever exceeds the Facility C Commitment, or if the sum of the Facility A Principal Debt, the Facility B Principal Debt and the Facility C Principal Debt, together with the LC Exposure, ever exceeds the Total Commitment, then Borrower shall immediately prepay the outstanding Revolving Loans by Principal Debt in the amount of that excess.
(ii) Borrower shall prepay the excess plus Principal Debt in the amount of 100% of the cash proceeds (after selling expenses and taxes related thereto to the extent paid and any reserves for retained liabilities until such liabilities are extinguished) received by any Company from the disposition of any asset (including proceeds from the disposition of the stock of Subsidiaries and proceeds received as a result of any casualty (OTHER THAN proceeds used by such Company to repair or replace such casualty in a like-kind manner) and including installment payments under promissory notes or other non-cash consideration received by any Company for such asset), OTHER THAN proceeds of dispositions permitted by SECTIONS 9.10(a), (b), (c), (d), (e) and (g), within three Business Days after receipt of such proceeds.
(iii) Borrower shall prepay the Principal Debt in the amount of 100% of any Funded Debt incurred by any Company after the date hereof (net of underwriting discounts and commissions and other costs associated therewith), OTHER THAN inter-Company Loans and Capital Lease obligations, simultaneously with the incurrence of such Debt.
(iv) Borrower shall prepay the Principal Debt in the amount of 100% (if the ratio of Funded Debt, after giving effect to such prepayment, to EBITDA for the 12-month period ending on the last day of the immediately preceding month was greater than or equal to 3.50 to 1.00) or 50% (if such ratio was less than 3.50 to 1.00) of the cash proceeds (net of underwriting discounts and commissions and other costs associated therewith) received by any Company from the issuance and sale of equity securities (OTHER THAN sales of Borrower's common stock to employees as a result of the exercise of any options with regard thereto) simultaneous with the receipt of such proceeds. Each prepayment under this SECTION 3.2(c) shall be accompanied by payment of any resulting Funding Loss and all accrued and unpaid interest on the principal amount so prepaid.
(ii. Subject to the provisions of SECTION 3.11, mandatory prepayments under this SECTION 3.2(c) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, shall be applied in the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject order: FIRST to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
Facility C Principal Debt (C) 100% of any Net Proceeds of and a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent matching reduction of the Reovlving Commitments, Facility C Commitment); SECOND to installments of principal due under Facility B in each case for the preceding clauses (1) inverse order of maturity; and (2) solely THIRD to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent Facility A Principal Debt (and a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender matching reduction of such noticethe Facility A Commitment).
Appears in 1 contract
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
Subject to clause (ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
if (A) [reserved];
any Note Party or any Subsidiary thereof Transfers any assets or property (other than any Transfer permitted by clauses (i) through (iv) of Section 7(t)) or (B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement Insurance/Condemnation Event in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided thatassets or property of any Note Party or any Subsidiary thereof occurs, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful each case which results in the business realization or receipt by a Note Party or any Subsidiary thereof of the Loan PartiesNet Proceeds, then the Borrower shall cause to be permitted prepaid on or prior to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within which is five (5) Business Days after the date of such realization or receipt by which Borrower are required to deliver their Compliance Certificate and financial statements for such Note Party of such Net Proceeds, an aggregate principal amount of the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans Notes in an amount equal to 100% of all such Net Proceeds realized or received. Any such prepayment shall be reflected on the Conversion/PIK Schedule, containing at a minimum the information shown on Schedule 1 hereto.
(ii) So long as no Default or Event of Default has occurred and is continuing, with respect to any Net Proceeds realized or received with respect to any Insurance/Condemnation Event, at the option of the Borrower, the applicable Excess Cash Flow Percentage multiplied Note Party or Subsidiary may reinvest an amount equal to all or any portion of such Net Proceeds to replace the assets or property subject to such Insurance/Condemnation Event (which assets or property may, for the avoidance of doubt, be replaced with assets or property that are substantially similar to such assets or property subject to such Insurance/Condemnation Even) within (A) six (6) months following receipt of such Net Proceeds or (B) if the applicable Note Party or Subsidiary enters into a legally binding commitment to reinvest such Net Proceeds to replace such assets or property within six (6) months following receipt thereof, ninety (90) days after the six (6) month period that follow receipt of such Net Proceeds; provided that if any Net Proceeds are not so reinvested by Excess Cash Flow for the deadline specified in clause (A) or (B) above, as applicable, or if any such fiscal year then ended minus Net Proceeds are no longer intended to be or cannot be so reinvested, any such Net Proceeds shall be applied to the sum of (1) voluntary prepayments prepayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Notes as set forth in Section 3.2(a)(ii) in the fiscal year of such prepayment2(c)(i), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.
Appears in 1 contract
Sources: Limited Waiver, Deferral and Amendment and Restatement Agreement (Reed's, Inc.)
Mandatory Prepayment. (i) The Borrower will immediately prepay the Revolving A Loans at any time when the aggregate principal amount of all outstanding Revolving A Loans plus the outstanding amount of all Letter of Credit Obligations exceeds the lesser of (A) the Total Revolving A Credit Commitment and (B) the Borrowing Base, to the full extent of any such excess. On each day that any Loans or Letter of Credit Obligations are outstanding, the Borrower shall hereby be deemed to represent and warrant to the Agents and the Lenders that the Borrowing Base calculated as of such day equals or exceeds the aggregate principal amount of all Loans and Letter of Credit Obligations outstanding on such day. If at any time after the Revolving Borrower have complied with the first sentence of this Section 2.05(c)(i), the aggregate Letter of Credit Exposure (for any Revolving Lender or for Obligations is greater than the then current Borrowing Base, the Borrower shall provide cash collateral to the Administrative Agent in an amount equal to 105% of such excess, which cash collateral shall be deposited in the Letter of Credit Collateral Account and, provided that no Event of Default shall have occurred and be continuing, returned to the Borrower, at such time as the aggregate Letter of Credit Obligations plus the aggregate principal amount of all Revolving Lenders) outstanding Loans no longer exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaidthen current Borrowing Base.
(ii) No later than five The Administrative Agent shall on each Business Day apply all funds transferred to or deposited in the Administrative Agent's Account, to the payment, in whole or in part, of the outstanding principal amount of the Loans in accordance with Section 4.04; subject, however, to Section 2.05(d).
(5iii) Promptly (but in any event within three (3) Business Days Days) following receipt of the earlier Net Cash Proceeds of any Disposition by any Loan Party or its Subsidiaries pursuant to Section 7.02(c)(ii), the Borrower shall prepay the outstanding principal amount of the Loans in an amount equal to 100% of such Net Cash Proceeds received by such Person in connection with such Disposition to the extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to the Administrative Agent as a prepayment of the Loans) for all such Dispositions shall exceed $350,000 since the Effective Date. Nothing contained in this subsection (iii) shall permit any Loan Party or any of its Subsidiaries to make a Disposition of any property other than in accordance with Section 7.02(c)(ii).
(iv) Upon the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness referred to in clauses (a), (b), (c), (d), (e) and (h) of the definition of Permitted Indebtedness), or the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Capital Stock (excluding the sale or issuance by the Parent of any shares of its Capital Stock to (x) a Sponsor and (y) any member of the Parent's management), the Borrower shall prepay the outstanding principal amount of the Loans in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith. The provisions of this subsection (iv) shall not be deemed to be implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(v) Upon the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, the Borrower shall prepay the outstanding principal of the Loans (except to the extent such Extraordinary Receipts constitute insurance proceeds relating to the Inventory or Accounts, in which case the Extraordinary Receipts allocable in such assets shall be applied, first, to the Revolving A Loans and, second, to the Revolving B Loans) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts; provided, however, that (A) so long as no Default or an Event of Default has occurred and is continuing, on the date such amounts are received byPerson receives Extraordinary Receipts consisting of insurance proceeds from one or more policies covering, or for the account proceeds from any judgment, settlement, condemnation or other cause of action in respect of, the Borrower (loss, damage, taking or the applicable Loan Party) on or after the date hereof and the end theft of any election periods set forth belowproperty or assets, such Extraordinary Receipts received by the following amounts shall Loan Parties may, at the option of the Borrower, be paid applied to Administrative Agent repair or restore such property or assets or acquire replacement property or assets for the ratable benefit of the Lenders in the form received with any necessary endorsement property or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually assets so lost, damaged or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged stolen or other property or assets in assets that are subject to a security interest in favor of Collateral Agent and that are used or useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss for the property or assets so disposed, provided, that (x) the Collateral Agent for the benefit of cash the Agents and the Lenders has a first-priority Lien (whether as a result of theft, natural disaster or otherwise) shall not be subject to Permitted Liens) on such replacement (or repaired or restored) property or assets and (y) the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
Borrower delivers a certificate to the Agents within twenty (C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (4520) days after the date of receipt of such DispositionExtraordinary Receipts stating that such Extraordinary Receipts shall be used to repair or restore such property or assets or to acquire such replacement property or assets for the property or assets so lost, Borrower shall notify Administrative Agent in writing that it wishes to reinvest damaged or stolen or such Net Proceeds in other property or assets that are subject to a security interest in favor of Collateral Agent and that are used or useful in the business of the any Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 Party within one hundred eighty (180) days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s of receipt of such Net Proceeds Extraordinary Receipts (or if so committed which certificate shall set forth an estimate of the Extraordinary Receipts to be reinvested so expended) and (B) if all or any portion of such Extraordinary Receipts are not so used within such 365the 180-day period, reinvested within 180 days after the Administrative Agent shall apply such 365-day periodunused Extraordinary Receipts to prepay the Loans in accordance with this subsection (c)(v). Pending such reinvestment, then the applicable Loan Party Extraordinary Receipts shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term applied as a prepayment of Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by but not as a permanent reduction of in the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeTotal Revolving Credit Commitment.
Appears in 1 contract
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower financial statements are required to deliver their be delivered pursuant to Section 6.01(a) and the related Compliance Certificate and has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Group Term Loans (allocated among the Group Term Loans at the discretion of the Borrower) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2ended on December 31, 20222017), Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus (B) the sum of (1) all voluntary prepayments of the Group Term Loans made under any Group Credit Agreement (including any voluntary prepayments of any term loans under any Group Credit Agreement prior to the Second Amendment Effective Date) (provided that, with respect to Discounted Voluntary Prepayments under any Group Credit Agreement, only the actual amount of cash used to consummate such prepayment shall be included in such calculation) during such period fiscal year and after the end of such fiscal year but prior to the required date of such prepayment (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in such prepayment or purchase after the end of the fiscal year of year, together with such prepayment)prepayment described in clause (2) below, the “After Year-End Payment”) and (2) any all voluntary prepayments of Group Revolving Credit Loans during such fiscal year and after the Reovlving Facility solely end of such fiscal year but prior to the required date of such prepayment to the extent the Group Revolving Credit Commitments are permanently reduced by the amount of such prepayment is accompanied by a permanent reduction payments, in the case of each of the Reovlving Commitments, in each case for the immediately preceding clauses (1) and (2) solely ), to the extent such prepayments are not funded with the proceeds of Indebtedness (other than, with respect to clause (1) only, any Indebtedness incurred pursuant to any Revolving Credit Loan or repurchases are financed with Internally Generated Cash. Borrower Swing Line Loan) or any Specified Equity Contribution; provided that (a) the ECF Percentage shall deliver be 25% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to Administrative Agent a 3.25:1.00 and greater than 2.75:1.00 and (b) the ECF Percentage shall be 0% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to 2.75:1.00; provided, further, that solely for the purpose of this Section 2.05(b)(i), following the making of each After Year-End Payment, (i) the Consolidated First Lien Net Leverage Ratio shall be re-calculated giving Pro Forma Effect to such After Year-End Payment as if such payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory were made during the fiscal year in respect of which the prepayment pursuant to this Section 3.3(b2.05(b)(i) is made and (ii) such After Year-End Payment taken into account in the calculation of the required prepayment amount above for one fiscal year shall be disregarded for any subsequent calculations for future fiscal years. Notwithstanding anything set forth above, if for any fiscal year the amount calculated pursuant to clause (A) above is less than the amount calculated pursuant to clause (B) above (such amount, the “Excess Prepayments”), the cumulative amount of such Excess Prepayments shall be carried over in calculations for the following fiscal year (but not subsequent years) on a dollar-for-dollar basis.
(ii) (A) Subject to Section 2.05(b)(ii)(B), if (1) any Covenant Entity Disposes of any property or assets pursuant to Section 7.05(h), (i), (l), (n) (other than a Permitted Sale Leaseback between Nexstar Guarantors that are not the Holding Companies), (o)(y) or (u) (in each case of (o)(y) and (u), to the extent provided thereunder) or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), of an aggregate principal amount of Term Loans equal to the percentage represented by the quotient of (x) the Outstanding Amount of Term Loans at such time divided by (y) the sum of the Outstanding Amount of the Term Loans at such time and the amount of any other Indebtedness constituting term loans or term notes outstanding at such time that is secured by a Lien ranking pari passu with the Liens securing the Term Loans and requiring a like prepayment from such Net Cash Proceeds (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent shall promptly notify each Lender of such noticeits intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing).
Appears in 1 contract
Mandatory Prepayment. The outstanding Obligations shall be subject to prepayment as follows:
(a) If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any Collateral (other than the sale of Collateral (other than Real Estate, Capital Stock and Intellectual Property) in the ordinary course of business and the transfer of any Collateral among Stores and other locations of the Loan Parties), to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, provided that no Event of Default has occurred and is continuing, (i) If the proceeds therefrom are (a) utilized for purposes of replacing or repairing the assets in respect of which such proceeds were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds (or, in the case of any disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate, within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds) or (b) in the case of any disposition of Real Estate listed on Schedule 1.1(b), reinvested in additional Real Estate within twelve (12) months of the receipt of such proceeds or within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds and (ii) the aggregate amount at any time of such reinvested proceeds (A) in the Revolving Credit Exposure case of any such sale, transfer or other disposition of any such Collateral pursuant to a sale and leaseback transaction, is equal to or less than $10,000,000 and (B) in the case of any such sale, transfer or other disposition of such Collateral (other than pursuant to a sale and leaseback transaction and other than a disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate) is equal to or less than $10,000,000; or
(b) If on any date any Loan Party shall have received Net Proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party, to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds;
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (w)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f); and
(d) If, for any Revolving Lender or for all Revolving LendersFiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) exceeds the Revolving Credit Limit, Borrower shall immediately prepay ECF Percentage of such Excess Cash Flow minus (ii) the outstanding Revolving Loans by the principal amount of Term Loans optionally prepaid pursuant to Section 2.16 during such Fiscal Year toward the excess plus all accrued and unpaid interest prepayment of the Term Loans as set forth in SECTION 2.17(f). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the amount so prepaiddate on which financial statements of the Borrower have been delivered pursuant to SECTION 5.01(a).
(iie) Reserved.
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that any prepayment of any Term Loans pursuant to SECTION 2.17(c) shall be applied to repay Term Loans of each Class with an earlier Maturity Date prior to being applied to repay any Term Loans of any other Class with a later Maturity Date (and, if two Classes of Term Loans have the same Maturity Date, shall be applied on a pro rata basis to such Classes). Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied first, to the remaining scheduled installments of principal of such Term Loans pursuant to SECTION 2.04 that are due within 24 months of such prepayment and thereafter to the remaining scheduled installments of principal of the Term Loans of such Class on a pro rata basis. Subject to the foregoing, outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No later than prepayment of LIBO Loans of any Class shall be permitted pursuant to this SECTION 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within five (5) Business Days following of receiving a written demand for such reimbursement which sets forth the earlier calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the date such amounts are received by, or for the account ofBorrower, the Borrower (or Administrative Agent shall hold all amounts required to be applied to LIBO Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable Loan Party) on or after the date hereof and LIBO Loans of such Class at the end of any election periods set forth below, the following amounts then pending Interest Period therefor (provided that the foregoing shall be paid to Administrative Agent for in no way limit or restrict the ratable benefit of Agents’ rights upon the Lenders in occurrence and during the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% continuance of any cash Net Proceeds in excess other Event of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if anyDefault)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.
Appears in 1 contract
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Mandatory Prepayment. (a) If the Borrower receives any Net Proceeds in respect of (i) any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any property or asset of the Borrower or any Restricted Subsidiary resulting in proceeds in excess of $250,000.00, (ii) any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Restricted Subsidiary resulting in proceeds in excess of $250,000.00, (iii) the incurrence by the Borrower or any Restricted Subsidiary of any indebtedness for borrowed money (other than under this Agreement) or (iv) the issuance by the Borrower or any Restricted Subsidiary of shares of its capital stock or other equity ownership interests, the Borrower shall prepay, within five Business Days after such Net Proceeds are received, the principal amount of Loans outstanding in an aggregate principal amount equal to the lesser of (A) 100% of such Net Proceeds and (B) the aggregate outstanding principal amount of the Loans; provided that in the case of any prepayment arising from (x) any sale, transfer or other disposition of any property or assets in which the aggregate Net Proceeds received by the Borrower and the Restricted Subsidiaries in the then-current fiscal year exceed $250,000.00 or (y) any casualty to or condemnation of any property or assets, if the Borrower shall deliver to the Lender a certificate of an officer of the Borrower to the effect that the Borrower or any Restricted Subsidiary intends to apply the Net Proceeds from such event, within 180 days after receipt of such Net Proceeds, to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or any Restricted Subsidiary or, in the case of insurance or condemnation proceeds, to the repair or replacement of the property insured, and in each case certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this paragraph in respect of such event except to the extent of any Net Proceeds therefrom that have not been so applied by the end of such 180-day period, at which time a prepayment shall be required in an amount equal to the Net Proceeds that have not been so applied.
(b) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds sum of the Revolving Credit Limitaggregate principal amount of Total Outstandings shall exceed the Commitment hereunder, the Borrower shall will immediately prepay the outstanding Revolving Loans by to the amount of the excess plus all accrued and unpaid interest on the amount so prepaidextent necessary to eliminate such excess.
(iic) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and Following the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit each fiscal quarter of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year quarter ending January 2September 30, 20222007, the Borrower shall prepay the Term Loans (with application of payments as provided in Section 4.04, an “Excess Cash Amount Payment”) in an amount equal to 75% of the applicable Excess Cash Flow Percentage multiplied by Amount at the end of such fiscal quarter; provided, that the Lender, in its sole discretion, may decline all or part of an Excess Cash Flow for such fiscal year then ended minus Amount Payment. Each prepayment required pursuant to this Section 2.07(c) shall be made on or before the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due date on which financial statements are delivered pursuant to Section 3.2(a)(ii) in 7.01 with respect to the fiscal year of such prepayment)quarter for which the Excess Cash Amount is being calculated. Commencing with the fiscal quarter ending September 30, and (2) any voluntary prepayments of 2007, the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent the Lender, a payment notification not later than 11:00 a.m. New York City time certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the Excess Cash Amount at least two the end of the applicable quarter. Any such certificate shall be referred to herein as an “Excess Cash Amount Certificate” and shall be delivered to the Lender (1) on or before the date that is 45 days after the end of the applicable fiscal quarter or (2) Business Days prior to each mandatory with the making of any prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice2.07(c), as the case may be.
Appears in 1 contract
Mandatory Prepayment. (i) If at any time, or from time to time, after the Revolving Credit Exposure date hereof and following the occurrence and during the continuance of an Event of Default (for as that term is defined below) the Obligor or any Revolving Lender of the Obligor's Permitted Transferees (as that term is defined in a an Amended and Restated Shareholders' Agreement dated as of December 17, 1993 among the Company and its shareholders (the "Shareholders' Agreement")) shall receive or for all Revolving Lendersshall otherwise become entitled to receive from the Company (or other holder of this Note) exceeds any cash payments, cash dividends or other cash distributions in respect of the Revolving Credit LimitCompany's Common Stock, Borrower then and in each case the Obligor and any of the Obligor's Permitted Transferees shall, upon the receipt thereof, return to the Company (or other holder of this Note) such payments, dividends and distributions, and the Company (or other holder of this Note) shall immediately prepay apply such amount to the outstanding Revolving Loans by prepayment of the Obligations in the manner set forth in Section 1(b), and the Company (or other holder of this Note) shall not be obligated to make any such payment, cash dividend or other cash distribution not theretofore made to which the Obligor and any of the Obligor's Permitted Transferees are otherwise entitled in respect of their Common Stock and may, instead, in lieu thereof, set off the amount of such cash payment, cash dividend or other cash distribution against the excess plus all accrued and unpaid interest on the amount so prepaidObligations.
(ii) No later than five If at any time, the Obligor receives any proceeds from the sale by the Obligor or any of the Obligor's Permitted Transferees of any Common Stock to anyone, the Net Proceeds (5) Business Days following as defined in the earlier Stock Pledge Agreement dated as of the date such amounts are received by, or for hereof between the account of, the Borrower (or the applicable Loan Party) on or after the date hereof Obligor and the end Company) from such sale of any election periods set forth below, the following amounts Common Stock shall be paid applied to Administrative Agent for the ratable benefit prepayment of the Lenders this Note in the form received with any necessary endorsement or assignmentmanner provided in the Stock Pledge Agreement.
(iii) In addition to the provisions of subsections (c)(i) and (c)(ii) above:
(A) [reserved];
If the Obligor voluntarily terminates his employment with the Company, or if the Company terminates the employment of the Obligor for Cause (B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or as such term is defined in the aggregate over Employment and Non-Competition Agreement dated May 1, 1996 by and between the term of this Agreement in respect of any Casualty Event affecting Collateral (plus Company and the Applicable Premium (if any)); provided thatObligor, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period"Employment Agreement"), then the applicable Loan Party shall be required to Obligor shall, without the necessity of any notice or demand by the Company of any kind, immediately make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans hereunder in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus outstanding Obligations.
(B) If the sum of (1) voluntary prepayments Obligor dies, suffers a disability in accordance with Section 3.02 of the Term Loans made during Employment Agreement or if the Company terminates his employment without Cause (as such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) term is defined in the fiscal year Employment Agreement) (each an "Involuntary Termination"), then the Obligor shall, without the necessity of any notice or demand by the Company of any kind, immediately make a mandatory prepayment hereunder in an amount equal to the then outstanding Obligations; provided, however, that if upon such prepaymentInvoluntary Termination (I) either the Company exercises its Call Option (as defined in the Shareholders' Agreement) or the Obligor exercises his Put Option (as defined in the Shareholders' Agreement), and (2) any voluntary prepayments the proceeds of the Reovlving Facility solely exercise of such Call Option or Put option, as the case may be, after first being applied to all of the then outstanding Obligations other than Converted Amounts, is not sufficient to pay all Converted Amounts, or (II) neither the Company exercises its Call Option nor the Obligor exercises his Put Option, then, in the case of subclause (B)(I), such unpaid Converted Amounts, and in the case of subclause (B)(II), all outstanding Converted Amounts, shall not be immediately due and payable but shall be due and payable in equal monthly installments ("Converted Amount Installments") payable on the first day of each month from the date of the Involuntary Termination until the Maturity Date; provided further, however, that the Obligor's obligation to pay Converted Amount Installments shall cease at such time as the Company has no further obligation to pay any amounts to the extent such prepayment is accompanied by a permanent reduction Obligor either under Section 3.02 of the Reovlving Commitments, Employment Agreement (in the case of the Obligor's death or disability) or Section 3.03 of the Employment Agreement (in the case of the termination of the Obligor's employment without Cause). The Converted Amount shall bear interest hereunder at the Stated Rate and such interest shall be payable with each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeConverted Amount Installment.
Appears in 1 contract
Mandatory Prepayment. (i) If at Promptly upon the incurrence of any time the Revolving Credit Exposure Debt (for any Revolving Lender or for all Revolving Lendersother than capital lease obligations) exceeds the Revolving Credit Limitowed to a Person other than Bank, Borrower shall immediately prepay make a prepayment to Bank in an amount equal to 100% of the outstanding Revolving Loans net cash proceeds received by the amount Loan Parties from the incurrence of the excess plus all accrued and unpaid interest on the amount so prepaidsuch Debt.
(ii) No later Promptly upon the sale, transfer or disposition of any assets or property by any Loan Party (other than five the sale of inventory in the ordinary course of business and the sale or disposal of obsolete, worn out or damaged equipment and inventory), Borrower shall make a prepayment to Bank in an amount equal to 100% of the net cash proceeds received by the Loan Parties from such sale, transfer or disposition; provided however, any net cash proceeds from the sale, transfer or disposition of assets of less than $5,000,000 in the aggregate received during any fiscal year of Borrower may be Reinvested by Borrower or such Subsidiary if the following conditions are satisfied: (5A) Business Days promptly following the earlier receipt of such net cash proceeds, Borrower provides to Bank a reinvestment certificate stating (1) that no Default or Event of Default has occurred and is continuing either as of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement receipt of such proceeds or assignment:
(A) [reserved];
(B) 100% as of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Eventreinvestment certificate, (2) that such proceeds have been received and (3) a description of the planned Reinvestment of such proceeds), (B) the Reinvestment of such proceeds is completed within 120 days and (C) no Default or Event of Default shall have occurred and be continuing at the time of the application of such proceeds to Reinvestment. If any such proceeds have not been Reinvested at the end of the periods provided above, Borrower shall notify Administrative Agent promptly pay such net cash proceeds to Bank to be applied in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business accordance with this Section 2(c).
(iii) Following satisfaction of the Loan PartiesOperating Reserve Account Release Conditions, then promptly upon the issuance of any Equity Interests in Borrower or any of its Subsidiaries (unless otherwise waived by Bank in writing), Borrower shall be permitted make a prepayment to defer such prepayment for a period of up Bank in an amount equal to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 10050% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any net cash Net Proceeds proceeds received by the Loan Parties from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);such Equity Interests.
(Eiv) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing Beginning with the fiscal year ending January December 31, 2023 and for each fiscal year thereafter, on or before 45 days after the end of such fiscal year (“ECF Payment Date”), Borrower will calculate the amount of the Excess Cash Flow as of the end of such fiscal year (such amount of Excess Cash Flow referred to herein as the “Original ECF Amount”), and Borrower shall make a prepayment to Bank (an "Excess Cash Flow Payment") in an amount equal to 50% of the Original ECF Amount; provided, however, that in the event Borrower’s Senior Funded Debt to EBITDA Ratio is less than 1.50 to 1.00, such prepayment shall not be required. Furthermore, upon receipt of the audited financial statements required to be delivered under Section 4(a)(i) for such fiscal year, Borrower will re-calculate the amount of the Excess Cash Flow as of the end of such fiscal year (such amount of Excess Cash Flow referred to herein as the “Adjusted ECF Amount”), and Borrower agrees to each of the following:
A. If the Original ECF Amount exceeds the Adjusted ECF Amount, then on the ECF Payment Date for the next succeeding fiscal year, the Excess Cash Flow Payment due for such next succeeding fiscal year shall be reduced by an amount equal to the lesser of (1) the resulting decrease in the amount of Excess Cash Flow Payment if such payment had been calculated based on the Adjusted ECF Amount or (2) 15% of EBITDA for such fiscal year.
B. If the Adjusted ECF Amount exceeds the Original ECF Amount, 2022then within 30 days following the calculation of the Adjusted ECF Amount, Borrower shall prepay the Term Loans make an additional prepayment to Bank in an amount equal to the applicable resulting increase in the Excess Cash Flow Percentage multiplied Payment if such payment had been calculated based on the Adjusted ECF Amount. All payments made under Section 2(c)(iv) and received by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments Bank shall be applied in payment of the Indebtedness in the following order: first, to outstanding principal amount of the Loans under the Term Loans made during such period Note (other than voluntary prepayments applied in inverse order of maturities until paid in full); second, to Bank's costs and expenses; third, to the outstanding principal amount of the loans under the Revolving Credit Note until paid in full; fourth, to prepay future amortization payments that would be due pursuant any outstanding Indebtedness, including providing cash collateral any undrawn letters of credit issued hereunder; and fifth, any remaining amount to Section 3.2(a)(ii) the Borrower. Any such reductions in the fiscal year of such prepayment), and (2) any voluntary prepayments amount of the Reovlving Facility solely Notes as provided in this Section 2(c)(iv) shall be in addition to the extent such all scheduled principal payments and optional payments. No prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely penalty or premium shall be required with respect to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each any mandatory prepayment made pursuant to this Section 3.3(b2(c)(iv) or any voluntary prepayment of the outstanding amounts of Notes as provided therein. All payments made under this Section 2(c) (other than under Section 2(c)(iv)) and Administrative Agent received by Bank shall promptly notify each Lender be applied in payment of the Indebtedness in the following order: first, to Bank's costs and expenses; second, to outstanding principal amount of the Loans under the Term Note (in inverse order of maturities until paid in full); third, to outstanding principal amount of the loans under the Revolving Credit Note until paid in full; fourth, to prepay any outstanding Indebtedness, including providing cash collateral any undrawn letters of credit issued hereunder; and fifth, any remaining amount to the Borrower. Any such noticereductions in the amount of the Notes as provided in this Section 2(c) shall be in addition to all scheduled principal payments and optional payments. No prepayment penalty or premium shall be required with respect to any mandatory prepayment made pursuant to this Section 2(c) or any voluntary prepayment of the outstanding amounts of Notes as provided therein.
Appears in 1 contract
Sources: Credit Agreement (Ashford Inc.)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Parties, then definition of “Permitted Dispositions,” to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100%the Asset Sale Percentage of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelveeighteen (1218) months of the receipt of such proceeds (or within eighteentwenty-four (1824) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelveeighteen (1218) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100%the Asset Sale Percentage of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelveeighteen (1218) months of the receipt of such proceeds (or within eighteentwenty-four (1824) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelveeighteen (1218) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 3.3(b)(ii)(E2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to Section 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in Section 2.17(f) and the amount expended by the Borrower pursuant to Sections 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date by on which the compliance certificate of the Borrower are required has been delivered pursuant to deliver their Compliance Certificate and financial statements for the applicable fiscal year Section 5.01(d).
(e) [Reserved].
(f) Any prepayment of any Term Loans pursuant to Sections 8.1(a2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that (i) any prepayment of any Term Loans pursuant to Section 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the Borrower. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow, the amount of the prepayment of the Term Loans required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such Qualifying Secured Debt then outstanding and (d)iii) any Lender may elect to decline its share of any prepayment pursuant to clause (a), commencing with (b) or (d) above by giving notice to the fiscal year ending January 2Administrative Agent within one Business Day following the date the Borrower gives notice of such prepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”). Subject to the foregoing, 2022outstanding Prime Rate Loans of any Class shall be prepaid before outstanding Term Benchmark Loans of such Class are prepaid. No prepayment of Term Benchmark Loans of any Class shall be permitted pursuant to this Section 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within fifteen (15) Business Days of receiving a written demand for such reimbursement which sets forth the calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall hold all amounts required to be applied to Term Benchmark Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable Term Benchmark Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) The Borrower shall prepay all Non-Converted Term B-56 Loans on the Term Loans in Amendment No. 911 Effective Date.
(h) Notwithstanding any other provisions of this Section 2.17, (A) to the extent that any or all of the Excess Cash Flow of a Foreign Subsidiary is prohibited or delayed by any requirement of law from being repatriated to the Loan Parties, an amount equal to the applicable portion of Excess Cash Flow Percentage multiplied so affected will not be required to be applied to repay Term Loans at the times provided in clause (d) above, as the case may be, but only so long, as the applicable requirement of law will not permit repatriation to the Loan Parties (the Loan Parties hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit repatriation), and once a repatriation of any of such affected Excess Cash Flow for is permitted under the applicable requirement of law, an amount equal to such fiscal year then ended minus Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the sum of (1) voluntary prepayments repayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loans, and (2B) any voluntary prepayments of the Reovlving Facility solely to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow of a Foreign Subsidiary could have an adverse tax consequence with respect to such prepayment is accompanied by a permanent reduction of the Reovlving CommitmentsExcess Cash Flow, in each case for the preceding clauses (1) and (2) solely an amount equal to the extent such prepayments or repurchases are financed with Internally Generated CashExcess Cash Flow so affected may be retained by the applicable Foreign Subsidiary. Borrower For the avoidance of doubt, nothing in this Agreement, including Section 2.17 shall deliver be construed to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior require any Foreign Subsidiary to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticerepatriate cash.
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Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(Fa) Within five (5) Business Days after of the date by which Borrower are required consummation of any Qualifying Debt Transaction, the Issuers shall cause to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in be applied an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for Sterling Equivalent of 80.0% of the total gross proceeds raised in respect of such fiscal year then ended minus Qualifying Debt Transaction against prepayment of any accrued and unpaid interest on, and outstanding principal amount, of this Note, together with the Future Loss Payoff Amount; provided that GFI and its Subsidiaries shall be entitled to retain and exclude from the calculation and prepayment requirement above an amount (the “Retained QDT Proceeds”) from all Qualifying Debt Transactions since the Issue Date not exceeding in the aggregate the sum of (A) the lesser of (x) $750,000,000 (or its dollar equivalent) and (y) the amount of such total gross proceeds that (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied are used or will be used to prepay future amortization payments that would be repay GHI’s then outstanding 7.200% Senior Notes due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)2021 and 7.625% Senior Notes due 2021, and (2) are used or will be used to pay reasonable fees (including discounts, premiums and commissions), expenses, interest and other costs related to such Qualifying Debt Transaction or the payoff of such Senior Notes and (3) are used or will be used to fund such other uses in a manner substantially consistent with the uses described by the Issuers to the Holder in writing prior to the Issue Date (including any voluntary prepayments reserves established for any such uses) plus (B) the amount of any applicable Required Retention Amount; provided, further that in connection with any amounts constituting Retained QDT Proceeds, (x) at the time of such determination no Event of Default has occurred and is continuing (or would result therefrom) and (y) the Administrative Issuer has, on or prior to the date of consummation of any Qualifying Debt Transaction, delivered a certificate signed by a Senior Officer of the Reovlving Facility Administrative Issuer to the Holder with supporting evidence in reasonable detail as to the calculation of the Retained QDT Proceeds, including amounts retained pursuant to clause (A) above and the Required Retention Amount set forth in clause (B) above and certifying that an amount equal to the Required Retention Amount shall be contributed to GMICO to avoid a capital deficiency giving rise to the Required Retention Amount. It is understood and agreed that to the extent the Issuers or any of their Subsidiaries no longer need or intend in good faith to so apply any amounts constituting Retained QDT Proceeds pursuant to clause (A)(y) or clause (B) above for the uses set forth therein (including any such amounts held or reserved for such uses), such amounts no longer so needed or intended to be so applied shall be subject to prepayment pursuant to the calculation set forth in this clause (a) within five (5) Business Days of such determination without giving regard to the previous retention of Retained QDT Proceeds by such amount.
(b) Within five (5) Business Days of the consummation of any Qualifying Equity Transaction, the Issuers shall cause to be applied an amount equal to the Sterling Equivalent of 100% of the total Net Cash Proceeds raised in respect of such Qualifying Equity Transaction against prepayment of any accrued and unpaid interest on and outstanding principal amount of this Note, together with the Future Loss Payoff Amount; provided that GFI and its Subsidiaries shall be entitled to retain an amount (the “Retained QET Net Proceeds”) from all Qualifying Equity Transactions since the Issue Date not exceeding in the aggregate the sum of (A) the lesser of (x) $475,000,000 and (y) the amount of such proceeds that (1) are used or will be used to repay GHI’s then outstanding 7.200% Senior Notes due 2021 and 7.625% Senior Notes due 2021, (2) are used or will be used to pay reasonable fees (including discounts, premiums and commissions), expenses, interest and other costs related to the payoff of such Senior Notes and (3) without duplication of the amounts netted pursuant to the definition of Net Cash Proceeds, are used or will be used to fund such other uses in a manner substantially consistent with the uses described by the Issuers to the Holder in writing prior to the Issue Date (including any reserves established for any such uses) plus (B) the amount of any applicable Required Retention Amount; provided, further that in connection with any amounts constituting Retained QET Net Proceeds, (x) at the time of such determination no Event of Default has occurred and is continuing (or would result therefrom) and (y) the Administrative Issuer has, on or prior to the date of consummation of any Qualifying Equity Transaction, delivered a certificate signed by a Senior Officer of the Administrative Issuer to the Holder with supporting evidence in reasonable detail as to the calculation of the Retained QET Net Proceeds, including amounts retained pursuant to clause (A) above and the Required Retention Amount set forth in clause (B) above and certifying that an amount equal to the Required Retention Amount shall be contributed to GMICO to avoid a capital deficiency giving rise to the Required Retention Amount. It is understood and agreed that to the extent the Issuers or any of their Subsidiaries no longer need or intend in good faith to so apply any amounts constituting Retained QET Net Proceeds pursuant to clause (A)(y) or clause (B) above for the uses set forth therein (including any such amounts held or reserved for such uses), such amounts no longer so needed or intended to be so applied shall be subject to prepayment pursuant to the calculation set forth in this clause (b) within five (5) Business Days of such determination without giving regard to the previous retention of Retained QET Net Proceeds by such amount.
(c) Immediately upon the occurrence of a Change of Control (or, in the case of clauses (b) and (c) of the definition thereof, within five (5) Business Days), the Issuers shall repay the outstanding principal amount of this Note, together with all accrued and unpaid interest thereon, and all other outstanding Obligations (including, for the avoidance of doubt, the Future Loss Payoff Amount).
(d) Upon the consummation or completion of the China Oceanwide Acquisition and solely to the extent such prepayment is accompanied by a permanent reduction that the China Oceanwide Acquisition results in at least $1,500,000,000 of capital contributions of which GFI and/or any of the Reovlving CommitmentsNote Parties or their respective Subsidiaries is in receipt or possession, the Issuers shall, as promptly as practicable in each case for light of the preceding clauses Note Parties’ then existing liquidity needs (1as determined by the Note Parties in good faith) after such receipt or possession and (2) solely in any event by June 30, 2022, cause to be applied such sums against prepayment in full of any accrued and unpaid interest on and all outstanding principal amount of this Note, together with the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeFuture Loss Payoff Amount.
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Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Partiesdefinition of “Permitted Dispositions”, then to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, provided that (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelve (12) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(Eapplied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to SECTION 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in SECTION 2.17(f) and the amount expended by the Borrower pursuant to SECTIONS 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date on which the compliance certificate of the Borrower has been delivered pursuant to SECTION 5.01(d).
(e) [Reserved].
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that (i) any prepayment of any Term Loans pursuant to SECTION 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the Borrower. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow, the amount of the prepayment of the Term Loans required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such Qualifying Secured Debt then outstanding and (iii) any Lender may elect to decline its share of any prepayment pursuant to clause (a), (b) or (d) above by giving notice to the Administrative Agent within one Business Day following the date the Borrower gives notice of such prepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”). Subject to the foregoing, outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No prepayment of LIBO Loans of any Class shall be permitted pursuant to this SECTION 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within fifteen (15) Business Days of receiving a written demand for such reimbursement which Borrower are sets forth the calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall hold all amounts required to deliver their Compliance Certificate be applied to LIBO Loans of a particular Class in a Cash Collateral Account and financial statements for will apply such funds to the applicable fiscal year pursuant to Sections 8.1(aLIBO Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) and (d)), commencing with the fiscal year ending January 2, 2022, The Borrower shall prepay all Non-Converted Term B-34 Loans on the Term Loans in Amendment No. 56 Effective Date.
(h) Notwithstanding any other provisions of this SECTION 2.17, (A) to the extent that any or all of the Excess Cash Flow of a Foreign Subsidiary is prohibited or delayed by any requirement of law from being repatriated to the Loan Parties, an amount equal to the applicable portion of Excess Cash Flow Percentage multiplied so affected will not be required to be applied to repay Term Loans at the times provided in clause (d) above, as the case may be, but only so long, as the applicable requirement of law will not permit repatriation to the Loan Parties (the Loan Parties hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit repatriation), and once a repatriation of any of such affected Excess Cash Flow for is permitted under the applicable requirement of law, an amount equal to such fiscal year then ended minus Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the sum of (1) voluntary prepayments repayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loans, and (2B) any voluntary prepayments of the Reovlving Facility solely to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow of a Foreign Subsidiary could have an adverse tax consequence with respect to such prepayment is accompanied by a permanent reduction of the Reovlving CommitmentsExcess Cash Flow, in each case for the preceding clauses (1) and (2) solely an amount equal to the extent such prepayments or repurchases are financed with Internally Generated CashExcess Cash Flow so affected may be retained by the applicable Foreign Subsidiary. Borrower For the avoidance of doubt, nothing in this Agreement, including SECTION 2.17 shall deliver be construed to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior require any Foreign Subsidiary to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticerepatriate cash.
Appears in 1 contract
Mandatory Prepayment. (ia) If at any time In the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limitevent that an Unencumbered Asset Pool Property is sold, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received bytransferred, or for the account ofencumbered with a Lien that is not a Permitted Lien, subject to Sections 5.16 and 5.17 hereof, the Borrower (shall, simultaneously with such sale, transfer, or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth belowencumbering, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to 100% of the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow net proceeds of such sale, transfer or financing, or, if less, such amount as shall be required for the Borrower to remain in compliance with Section 5.8 of this Agreement. Notwithstanding the foregoing, a simultaneous like-kind exchange under Section 1031 of the Internal Revenue Code will not be subject to the provisions of this Section 2.9(a); provided, that (i) the exchanged property has qualified as a New Acquisition, (ii) the exchanged property is not subject to any Liens (other than Permitted Liens) and (iii) any "boot" associated therewith shall be applied to prepayment of the Loans. Any failure to make a required mandatory prepayment following a sale of or granting of a Lien which is not a Permitted Lien on an Unencumbered Asset Pool Property in violation of this Section 2.9 shall constitute an Event of Default.
(b) If, at any time, the Outstanding Balance shall exceed the Available Facility, then the Borrower shall immediately prepay the Loans in an amount equal to such fiscal year excess. Notwithstanding the foregoing, if the Outstanding Balance exceeds an amount equal to 55.0% of the Unencumbered Asset Pool Properties Value as of the last day of any calendar quarter or the date of any New Acquisition and no other Event of Default shall have occurred and be continuing, then ended minus the sum Borrower shall, within thirty (30) days after the last day of the preceding calendar quarter or the date of any New Acquisition resulting in such excess (whichever is applicable), either (A) cause one (1) voluntary prepayments or more New Acquisitions having Unencumbered Asset Pool Property Values sufficient to ensure the Borrower's compliance with the requirements of this Agreement to be included as Unencumbered Asset Pool Properties or (B) prepay the Loans in an amount equal to 100% of the Term Loans made during such period amount by which the Outstanding Balance exceeds the Available Facility.
(other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(iic) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. The Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory make any prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender 2.9 together with interest accrued to the date of such noticeprepayment on the principal amount so prepaid; provided that any prepayment pursuant to this Section 2.9 shall be applied (unless an Event of Default exists) as specified by the Borrower or, otherwise, first to any Base Rate Loans then outstanding, then to any Euro-Dollar Loans (starting with the shortest Interest Periods), and then to Money Market Loans (subject to Section 2.10(f)). In connection with the prepayment of a Euro-Dollar Loan prior to the last day of the Interest Period applicable thereto, the Borrower shall also pay any applicable expenses pursuant to Section 2.12. Each such prepayment shall be applied to prepay ratably the Loans of the Banks. Amounts prepaid pursuant to this Section 2.9 may not be reborrowed unless the Borrower shall be in compliance with the covenants set forth in Section 5.8 both before and after giving effect to any such Borrowing.
(d) Any event referred to in this Section 2.9 that results in a required prepayment of the Loans pursuant to this Section 2.9 shall be referred to as a "Mandatory Prepayment Event".
Appears in 1 contract
Sources: Revolving Credit Agreement (Cabot Industrial Properties Lp)
Mandatory Prepayment. (a) To the extent Borrower, any other Loan Party or any of its Subsidiaries is required to make mandatory prepayments of the loans under the Senior Credit Agreement in accordance with Sections 2.10 and 2.11 of the Senior Credit Agreement, Borrower shall repay, or shall cause to be repaid, the Loans in accordance with terms of the Senior Credit Agreement and the pro rata provisions set forth in the Intercreditor and Collateral Sharing Agreement. To the extent that Net Cash Proceeds or Excess Cash Flow are to be utilized to repay the Loans, such payments shall be applied as follows: (i) If at any time to the Revolving Credit Exposure extent that such Net Cash Proceeds or Excess Cash Flow are to be applied to the Loans prior to July 1, 2013, such amounts shall be applied to the Outstanding Amount of the Growth Loans until the Growth Loans have been paid in full; provided, however in the event that (for any Revolving A) the Outstanding Amount of the Growth Loans have been paid in full, (B) Net Cash Proceeds and/or undistributed Excess Cash Flow remain after such repayment and (C) Lender or for all Revolving Lenders) exceeds has outstanding Growth Loan Commitment and/or HUD Loan Commitments to make Loans thereunder, then first, the Revolving Credit Limit, Borrower Growth Loan Commitment shall immediately prepay the outstanding Revolving Loans be reduce by the amount of such excess on a dollar-for-dollar basis until the excess plus all accrued Growth Loan Commitment equals zero and unpaid interest on second the HUD Loan Commitment shall be reduced by the amount so prepaid.
(ii) No later than five (5) Business Days following of any such excess remaining after the earlier reduction of the date such amounts are received byGrowth Commitment on a dollar-for-dollar basis until the HUD Loan Commitment equals zero, or for provided that any reduction in the account ofHUD Loan Commitment prior to July 1, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts 2013 shall be paid to Administrative Agent for the ratable benefit treated as a prepayment of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower HUD Loans and shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions terms and conditions of this Section 3.3(b)(ii)(B);
2.09 and (Cii) 100% of any Net Proceeds of a Specified Equity Contribution, plus to the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Cash Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for are to be applied to the Loans on or after July 1, 2013, such fiscal year then ended minus amounts shall be applied first to the sum of (1) voluntary prepayments Outstanding Amount of the Term Growth Loans made during such period (other than voluntary prepayments applied until the Growth Loans have been paid in full and second to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments Outstanding Amount of the Reovlving Facility solely HUD Loans until paid in full (subject to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, yield protection provisions set forth in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice2.09 above.
Appears in 1 contract
Sources: Credit Agreement (Tasty Baking Co)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
Subject to clause (ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
if (A) [reserved];
any Note Party or any Subsidiary thereof Transfers any assets or property (other than any Transfer permitted by clauses (i) through (iv) of Section 7(t)) or (B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement Insurance/Condemnation Event in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided thatassets or property of any Note Party or any Subsidiary thereof occurs, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful each case which results in the business realization or receipt by a Note Party or any Subsidiary thereof of the Loan PartiesNet Proceeds, then the Borrower shall cause to be permitted prepaid on or prior to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within which is five (5) Business Days after the date of such realization or receipt by such Note Party of such Net Proceeds, an aggregate principal amount of the Notes in an amount equal to 100% of all such Net Proceeds realized or received.
(ii) So long as no Default or Event of Default has occurred and is continuing, with respect to any Net Proceeds realized or received with respect to any Insurance/Condemnation Event, at the option of the Borrower, the applicable Note Party or Subsidiary may reinvest an amount equal to all or any portion of such Net Proceeds to replace the assets or property subject to such Insurance/Condemnation Event (which Borrower are required to deliver their Compliance Certificate and financial statements assets or property may, for the avoidance of doubt, be replaced with assets or property that are substantially similar to such assets or property subject to such Insurance/Condemnation Even) within (A) six (6) months following receipt of such Net Proceeds or (B) if the applicable fiscal year pursuant Note Party or Subsidiary enters into a legally binding commitment to Sections 8.1(areinvest such Net Proceeds to replace such assets or property within six (6) and months following receipt thereof, ninety (d90) days after the six (6) month period that follow receipt of such Net Proceeds; provided that if any Net Proceeds are not so reinvested by the deadline specified in clause (A) or (B) above, as applicable, or if any such Net Proceeds are no longer intended to be or cannot be so reinvested, any such Net Proceeds shall be applied to the prepayment of the Notes as set forth in Section 2(c)(i)).
(iii) At any time when (A) the Company has, commencing with for any calendar month positive net cash flow from operations or (B) any Note Party or any Subsidiary thereof receives swing-lid insurance proceeds or proceeds from employee retention credits, then the fiscal year ending January 2, 2022, Borrower Company shall within one (1) Business Days of such Business Day prepay the Term Loans Obligations under this Note in an amount equal to the applicable Excess Cash Flow Percentage multiplied amount of such positive net cash flow from operations or by Excess Cash Flow for the full amount of such fiscal year then ended minus proceeds received as contemplated by clause (B), as applicable; provided however, that no prepayment shall be required under this clause (iii) until the sum $500,000 of (1) voluntary prepayments Indebtedness borrowed under the ABL Debt Documents concurrently with the issuance of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) Fourth Option Notes shall have been repaid in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticefull.
Appears in 1 contract
Sources: Option Exercise and Sixth Amendment to the 10% Secured Convertible Notes (Reed's, Inc.)
Mandatory Prepayment. (i) If at When any time Borrower sells or otherwise disposes of any Collateral having a fair market value in excess of $100,000 individually, or in the Revolving Credit Exposure (for any Revolving Lender or aggregate for all Revolving Lenders) exceeds the Revolving Credit LimitBorrowers, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
in any fiscal year (ii) No later other than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders Inventory in the form received with ordinary course of business), Borrowers shall repay the Advances to the extent the aggregate Net Proceeds for all such sales in any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash fiscal year exceeds $100,000 in an amount equal to such Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower 100,000. Such repayments shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s made promptly but in no event more than one (1) Business Day following receipt of such Net Proceeds, and until the date of payment, such Net Proceeds (or if so committed shall be held in trust for Agent. The foregoing shall not be deemed to be reinvested within implied consent to any such 365-day period, reinvested within 180 days after such 365-day period), then sale otherwise prohibited by the applicable Loan Party terms and conditions hereof. Such repayments shall be required applied first, pro-rata to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further thatthe outstanding principal installments of the Term Loan and second, notwithstanding to the remaining Advances in such order as Agent may determine, subject to Borrowers' ability to reborrow Revolving Advances in accordance with the terms hereof. Notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss unless and until an Event of cash Default has occurred and is continuing, Borrowers may sell or otherwise dispose of Collateral (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions excluding for purposes of this Section 3.3(b)(ii)(B);
(Csentence Inventory in the ordinary course of business) 100% having a fair market value in excess of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or $100,000 in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest and utilize such Net Proceeds solely to acquire replacement Collateral without making a mandatory prepayment hereunder so long as (a) the acquired Collateral is purchased by Borrowers within one hundred eighty (180) days of the sale of the Collateral (the "Purchase Period"), (b) the proceeds of such sale are remitted to Agent and applied by Agent to reduce the outstanding amount of Revolving Advances in assets that accordance with the first sentence of this subsection 2.10(a)(i), (c) a reserve equal to the amount of such proceeds shall be established by Agent (the "Mandatory Reserve"), which reserve shall continue until the earlier to occur of (i) the date when payment for such replacement Collateral is made and the other conditions set forth in this subsection 2.10(i) are met to the reasonable satisfaction of Agent or (ii) the expiration of the Purchase Period, (d) the acquired Collateral shall be deemed to be acceptable Collateral by Agent in its reasonable discretion and (e) the acquired Collateral shall be subject to a Agent's first priority security interest created hereunder. If Borrowers fail to meet the conditions set forth in favor of Collateral clauses (a) through and including (e) above, Borrowers hereby authorize Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required Lenders to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans a Revolving Advance in an amount equal to the applicable Excess Cash Flow Percentage multiplied Mandatory Reserve to be applied as a prepayment of the Term Loan, in the manner set forth above. Immediately, thereafter, the applicable Mandatory Reserve shall be reduced to $0. If Borrowers meet the conditions set forth in clauses (a) through and including (e) above to the reasonable satisfaction of Agent, Agent shall, upon Borrowing Agent's request, make a Revolving Advance to the applicable Borrower in the amount of the applicable Mandatory Reserve to be used by the applicable Borrower to (i) purchase the replacement Collateral and (ii) be applied as a prepayment of the Term Loan, in the manner set forth above to the extent the purchase price of the replacement Collateral is less than the amount of such Revolving Advance and the applicable Mandatory Reserve shall be reduced.
(ii) Borrowers shall prepay the outstanding amount of the Advances in an amount equal to 75% of Excess Cash Flow for each fiscal year commencing on or after July 31, 1998 payable upon delivery of the financial statements to Agent referred to in and required by Section 9.7 for such fiscal year but in any event not later than ninety (90) days after the end of each such fiscal year, which amount shall be applied first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and, second, to the remaining Advances in such order as Agent may determine subject to Borrowers' ability to reborrow Revolving Advances in accordance with the terms hereof. In the event that the financial statement is not so delivered, then ended minus a calculation based upon estimated amounts shall be made by Agent upon which calculation Borrowers shall make the sum prepayment required by this Section 2.10(b), subject to adjustment when the financial statement is delivered to Agent as required hereby. The calculation made by Agent shall not be deemed a waiver of any rights Agent or Lenders may have as a result of the failure by Borrowers to deliver such financial statement.
(iii) Upon the completion of a Public Offering, Borrowers shall repay the Advances in an amount equal to fifty percent (50%) of the Net Proceeds of such Public Offering, such repayments to be made promptly but in no event more then one (1) voluntary prepayments Business Day following receipt of such Net Proceeds, and until the date of payment, such Net Proceeds shall be held in trust for Agent. Such repayment shall be applied first, pro rata to the outstanding principal installments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loan and second, and (2) any voluntary prepayments of the Reovlving Facility solely to the extent remaining Advances in such prepayment is accompanied by a permanent reduction of order as Agent may determine, subject to Borrowers' ability to reborrow Revolving Advances in accordance with the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeterms hereof.
Appears in 1 contract
Sources: Loan and Security Agreement (Lets Talk Cellular & Wireless Inc)
Mandatory Prepayment. (a) Borrower shall (x) prepay the Term Loans until paid in full and (y) thereafter repay the Revolving Loans in each case, at the following times and in the following amounts:
(i) If at concurrently with the receipt by Borrower or any time the Revolving Credit Exposure (for Restricted Subsidiary of any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit LimitNet Cash Proceeds from any Disposition, Borrower shall immediately prepay the outstanding Revolving Loans by the in an amount equal to such Net Cash Proceeds, it being understood that any portion of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier Net Cash Proceeds of the date such amounts are received by, or for the account of, the a Disposition that Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid Restricted Subsidiary intends to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds use to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested Disposition within 180 days after such 365-day period)Disposition with assets performing the same or similar function, then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject deemed to have been received by Borrower or such Restricted Subsidiary until the mandatory prepayment provisions expiration of this Section 3.3(b)(ii)(B)such 180 day period without reemployment of such amounts;
(Cii) 100% concurrently with the receipt by Holdings, Borrower or any Restricted Subsidiary of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Cash Proceeds from the any issuance of Debt issued by a Loan Party its equity securities (excluding any other Debt permitted to be incurred unless made pursuant to Section 9.17.10), plus the Applicable Premium (if any);in an amount equal to such Net Cash Proceeds; and
(Eiii) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) 90 days after the date end of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds each Fiscal Year (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day periodcommencing with Fiscal Year 2002), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by of Excess Cash Flow for such fiscal year then ended minus Fiscal Year.
(b) If on any day the sum of (1) voluntary prepayments Revolving Outstandings exceed Borrowing Availability, whether pursuant to a reduction of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due Revolving Loan Commitment pursuant to Section 3.2(a)(ii) 2.9.2 or otherwise, Borrower shall immediately prepay Revolving Loans and/or cash collateralize the outstanding Letters of Credit in the fiscal year of such prepayment)a manner acceptable to Agent, and (2) any voluntary prepayments or do a combination of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitmentsforegoing, in each case for the preceding clauses (1) and (2) solely an amount sufficient to the extent eliminate such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeexcess.
Appears in 1 contract
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Partiesdefinition of “Permitted Dispositions”, then to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, provided that (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelve (12) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(Eapplied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to SECTION 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in SECTION 2.17(f) and the amount expended by the Borrower pursuant to SECTIONS 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date by on which the compliance certificate of the Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year has been delivered pursuant to Sections 8.1(aSECTION 5.01(d).
(e) and [Reserved].
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d))) above shall be applied to repay Term Loans of each then outstanding Class, commencing with provided, that (i) any prepayment of any Term Loans pursuant to SECTION 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the fiscal year ending January 2, 2022, Borrower shall prepay the Borrower. Any prepayment of any Class of Term Loans in an amount equal accordance with the foregoing shall be applied to the applicable remaining scheduled installments of principal of such Term Loans pursuant to SECTION 2.04 as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus Flow, the sum amount of (1) voluntary prepayments the prepayment of the Term Loans made during required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such period Qualifying Secured Debt then outstanding and (other than voluntary prepayments applied iii) any Lender may elect to prepay future amortization payments that would be due decline its share of any prepayment pursuant to Section 3.2(a)(iiclause (a), (b) in or (d) above by giving notice to the fiscal year Administrative Agent within one Business Day following the date the Borrower gives notice of such prepaymentprepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”), and (2) any voluntary prepayments of the Reovlving Facility solely . Subject to the extent foregoing, outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No prepayment is accompanied by a permanent reduction of LIBO Loans of any Class shall be permitted pursuant to this SECTION 2.17 until the Reovlving Commitmentslast day of an Interest Period applicable thereto, in each case unless the Borrower reimburses the Lenders for the preceding clauses all Breakage Costs associated therewith within fifteen (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (215) Business Days prior of receiving a written demand for such reimbursement which sets forth the calculation of such Breakage Costs in reasonable detail. In order to each mandatory prepayment pursuant to this Section 3.3(b) avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall promptly notify each Lender hold all amounts required to be applied to LIBO Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable LIBO Loans of such noticeClass at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) The Borrower shall prepay all Non-Converted Term B-2 Loans on the Amendment No. 4
Appears in 1 contract
Mandatory Prepayment. (i) If at any time during the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount term of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofthis Agreement, the Borrower Company shall receive Net Offering Proceeds and/or Net Cash Proceeds (but only in connection with a refinancing or a sale of equity interests in the applicable Loan Party) on Borrower, the Company, RMOP or after the date hereof and the end any Subsidiary of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(Athem) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in 300,000,000, then, simultaneously therewith, the aggregate over Company shall repay the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum lesser of (1x) voluntary prepayments the aggregate Net Offering Proceeds and/or such Net Cash Proceeds received by the Company from and after the date hereof in excess of $300,000,000, and (y) the outstanding principal balance of the Term Loans. In addition, if such aggregate Net Offering Proceeds and/or Net Cash Proceeds received by the Company exceed the outstanding principal balance of the Loans, then the outstanding Commitments shall be reduced by an amount equal to such excess. If at any time from and after the Closing Date: (i) the Company, RMOP or the Borrower merges or consolidates with another Person and the Company, RMOP or Borrower, as the case may be, is not the surviving entity, or (ii) the Company, the Borrower, any of its Affiliates or consolidated Subsidiaries or the Management Company ceases to provide property management and leasing services to at least 80% of the total number of Projects in which the Borrower has a direct ownership interest (the date any such event shall occur being the "Prepayment Date"), the Borrower and/or RMOP, as the case may be, shall be required to prepay the Loans made during in their entirety as if the Prepayment Date were the Termination Date and, the Credit Commitment thereupon shall be terminated; provided that RMOP shall not be liable to make any payment in excess of the RMOP Obligations, and provided further that in the case of a merger or consolidation of RMOP pursuant to clause (i), RMOP shall have no further right to request Loans hereunder. The Borrower and RMOP shall immediately make such period (prepayment together with interest accrued to the date of the prepayment on the principal amount prepaid; provided that RMOP shall not be liable to make any payment in excess of the RMOP Obligations together with interest thereon. In connection with the prepayment of any Loan prior to the maturity thereof, the Borrower and RMOP shall also pay any applicable expenses pursuant to Section 5.2(f); provided that RMOP shall not be liable for any such payment other than voluntary prepayments any such payments incurred in connection with the RMOP Obligations. Each such prepayment shall be applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in ratably the fiscal year of such prepayment), and (2) any voluntary prepayments Loans of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated CashLenders. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment Amounts prepaid pursuant to this Section 3.3(b4.1(d) and Administrative Agent shall promptly notify each Lender of such noticemay not be reborrowed.
Appears in 1 contract
Mandatory Prepayment. (ia In the event that an Unencumbered Asset Pool Property (or any Separate Parcel that originally formed a part of an Unencumbered Asset Pool Property) If at any time is sold, transferred or released from the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount restrictions of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofSection 5.16 hereof, the Borrower (shall, simultaneously with such sale, transfer or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth belowrelease, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments 100% of the Term Loans made during net proceeds of such period (other than voluntary prepayments sale or transfer, in the event of a sale or transfer, or such lesser amount as shall be required for the Borrower to remain in compliance with this Agreement, in the event of such a sale, transfer or release. Notwithstanding the foregoing, a simultaneous like-kind exchange under Section 1031 of the Internal Revenue Code will not be subject to the provisions of this Section 2.10(a), provided that the exchanged property has qualified as a New Acquisition and any cash "boot" associated therewith shall be applied to prepay future amortization payments prepayment of the Loans or such lesser amount of such cash "boot" as shall be required for the Borrower to remain in compliance with this Agreement. Sale of an Unencumbered Asset Pool Property (or any Separate Parcel that would be due pursuant to Section 3.2(a)(iioriginally formed a part of a Unencumbered Asset Pool Property) in violation of this Section 2.10 shall constitute an Event of Default.
(b Simultaneously with the fiscal year closing of any sale of common shares of beneficial interest, preferred shares of beneficial interest, partnership interests, limited liability company interests, or other ownership or equity interests in the Borrower or the General Partner, the Borrower shall, simultaneously with such sale, prepay the Loans in an amount equal to 100% of the Net Offering Proceeds. Notwithstanding the foregoing, however, in the event that (i) the Net Offering Proceeds in connection with any individual offering shall be less than $20,000,000, and the Borrower anticipates reinvesting the same in Real Property Assets within fifteen (15) days after receipt thereof or (ii) any Loans expire within thirty (30) days of the date thereof, the Borrower may retain such funds, provided, however, that if the Borrower shall not in fact so reinvest such funds in Real Property Assets within such fifteen (15) day period or repay such Loans within such thirty (30) day period, as the case may be, the Borrower shall immediately apply the same in repayment of the Loans.
(c In the event that the Unsecured Debt Ratio is not maintained as of the last day of a calendar quarter, either (i) the Borrower will add a Real Property Asset to the Unencumbered Asset Pool Properties in accordance with this Agreement which, on a pro forma basis (i.e. the Unsecured Debt Ratio shall be --------- --- recalculated to include such Real Property Asset as though the same had been an Unencumbered Asset Pool Property for the entire applicable period) would result in compliance with the Unsecured Debt Ratio, or (ii) the Borrower shall prepay to the Administrative Agent, for the account of the Banks, an amount necessary to cause the Unsecured Debt Ratio to be in compliance within ninety (90) days of the date on which the Unsecured Debt Ratio failed to be maintained. Failure by the Borrower to comply with the Unsecured Debt Ratio within ninety (90) days of the date of such prepayment), and (2) any voluntary prepayments non-compliance shall be an Event of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeDefault.
Appears in 1 contract
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower financial statements are required to deliver their be delivered pursuant to Section 6.01(a) and the related Compliance Certificate and has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Group Term Loans (allocated among the Group Term Loans at the discretion of the Borrower) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2ended on December 31, 20222017), Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus (B) the sum of (1) all voluntary prepayments of the Group Term Loans made under any Group Credit Agreement (including any voluntary prepayments of any term loans under any Group Credit Agreement prior to the Third Amendment Effective Date) (provided that, with respect to Discounted Voluntary Prepayments under any Group Credit Agreement, only the actual amount of cash used to consummate such prepayment shall be included in such calculation) during such period fiscal year and after the end of such fiscal year but prior to the required date of such prepayment (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in such prepayment or purchase after the end of the fiscal year of year, together with such prepayment)prepayment described in clause (2) below, the “After Year-End Payment”) and (2) any all voluntary prepayments of Group Revolving Credit Loans during such fiscal year and after the Reovlving Facility solely end of such fiscal year but prior to the required date of such prepayment to the extent the Group Revolving Credit Commitments are permanently reduced by the amount of such prepayment is accompanied by a permanent reduction payments, in the case of each of the Reovlving Commitments, in each case for the immediately preceding clauses (1) and (2) solely ), to the extent such prepayments are not funded with the proceeds of Indebtedness (other than, with respect to clause (1) only, any Indebtedness incurred pursuant to any Revolving Credit Loan or repurchases are financed with Internally Generated Cash. Borrower Swing Line Loan) or any Specified Equity Contribution; provided that (a) the ECF Percentage shall deliver be 25% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to Administrative Agent a 3.25:1.00 and greater than 2.75:1.00 and (b) the ECF Percentage shall be 0% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to 2.75:1.00; provided, further, that solely for the purpose of this Section 2.05(b)(i), following the making of each After Year-End Payment, (i) the Consolidated First Lien Net Leverage Ratio shall be re-calculated giving Pro Forma Effect to such After Year-End Payment as if such payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory were made during the fiscal year in respect of which the prepayment pursuant to this Section 3.3(b2.05(b)(i) is made and (ii) such After Year-End Payment taken into account in the calculation of the required prepayment amount above for one fiscal year shall be disregarded for any subsequent calculations for future fiscal years. Notwithstanding anything set forth above, if for any fiscal year the amount calculated pursuant to clause (A) above is less than the amount calculated pursuant to clause (B) above (such amount, the “Excess Prepayments”), the cumulative amount of such Excess Prepayments shall be carried over in calculations for the following fiscal years on a dollar-for-dollar basis.
(ii) (A) Subject to Section 2.05(b)(ii)(B), if (1) any Covenant Entity Disposes of any property or assets pursuant to Section 7.05(h), (i), (l), (n) (other than a Permitted Sale Leaseback between Nexstar Guarantors that are not the Holding Companies), (o)(y), (u) (in each case of (o)(y) and (u), to the extent provided thereunder) or (w) (in the case of (w), only after the applicable Asset Sale Bridge Facility has been paid in full whether pursuant to a mandatory prepayment described in Section 2.05(b)(ii)(C) or otherwise) or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(CD), of an aggregate principal amount of Term Loans (other than Term A-8 Loans) equal to the percentage represented by the quotient of (x) the Outstanding Amount of Term Loans (other than Term A-8 Loans) at such time divided by (y) the sum of the Outstanding Amount of the Term Loans (other than Term A-8 Loans) at such time and the amount of any other Indebtedness constituting term loans or term notes outstanding at such time that is secured by a Lien ranking pari passu with the Liens securing the Term Loans and requiring a like prepayment from such Net Cash Proceeds (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent shall promptly notify each Lender of such noticeits intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing).
Appears in 1 contract
Mandatory Prepayment. (a) The Borrower shall apply, or procure the application of, 100 per cent. of Surplus Cash Flow (if any) in respect of each of the Six Month Periods of the Borrower ending on 30 June and 31 December in each year (commencing with the Six Month Period ending 30 June 2001) in mandatory prepayment of the Loan provided that the first (pound)10,000,000 which the Borrower would, but for this proviso, have been obliged so to apply or procure the application of may be retained by the Borrower (but without prejudice to the operation of this clause 6.4
(a) in respect of all other relevant amounts).
(b) The Borrower shall apply, or procure the application of the net cash proceeds after expenses of issue from any raising of equity finance or Borrowed Money (the "PREPAYMENT PROCEEDS") by Telewest made after the date hereof in prepayment of the Loan (save for (i) If at any time such proceeds raised for the purpose of purchasing the shares held by Comcast UK Cable Partners Limited in Birmingham Cable Corporation Limited and/or Cable London plc and provided that such proceeds are so applied within 90 days of receipt and (ii) any such proceeds from any raising of equity finance pursuant to a rights issue specifically to finance or part finance an acquisition of General Cable plc by Telewest and provided that the shares in relation to the equity financing are issued no later 31 December 1998). During the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds Period the Revolving Credit Limit, Borrower Commitments shall immediately prepay the outstanding Revolving Loans automatically be cancelled by the amount of such prepayment and the excess plus all accrued and unpaid interest Commitment of each Bank shall be reduced proportionately.
(c) Each prepayment to be made under paragraph (a) above shall:
(i) be made on Interest Payment Dates falling after the date upon which the Quarterly Management Accounts in respect of the Quarterly Period ending on the amount so prepaid.last day of the relevant Six Month Period are delivered to the Agent pursuant to clause 10.1(g), beginning with the first such date and continuing until the prepayment obligation under paragraph (a) above in respect of such Six Month Period has been satisfied; and
(ii) No later if on any Interest Payment Date upon which an amount of Excess Cash Flow is to be applied in prepayment of the Loan:
(1) such amount is less than five the amount of the Advances whose Interest Period ends on such date, the Borrower may select against which Advance or Advances the prepayment is to be made and the proportion of the relevant amount to be prepaid on each Advance but shall ensure that the full amount of such Excess Cash Flow required to be applied is so applied in prepayment;
(52) Business Days following such amount is equal to or greater than the earlier amount of the Advances whose Interest Period ends on such date, the Borrower shall prepay each such Advance on such date.
(d) Each prepayment to be made under paragraph (b) above shall:
(i) be made on Interest Payment Dates falling after the date upon which the Prepayment Proceeds are received by Telewest Communications plc beginning with the first such date and continuing until the prepayment obligation under paragraph (b) above has been satisfied; and
(ii) if on any Interest Payment Date upon which Prepayment Proceeds are to be applied in prepayment of the Loan:
(1) such amount is less than the amount of the Advances whose Interest Period ends on such date, the Borrower may select against which Advance or Advances the prepayment is to be made and the proportion of the relevant amount to be prepaid on each Advance but shall ensure that the full amount of such Prepayment Proceeds required to be applied are so applied in prepayment;
(2) such amount is equal to or greater than the amount of the Advances whose Interest Period ends on such date, the Borrower shall prepay each such Advance on such date.
(e) The Borrower's obligations under paragraph (a) above shall cease in respect of the relevant Six Month Period and all future Six Month Periods if, in respect of each of two consecutive Six Month Periods, Total TCN Group Debt on the last day of the relevant Six Month Period is less than 3.5 times Consolidated Annualised TCN Group Net Operating Cashflow calculated by reference to such Six Month Period, each as demonstrated in the Compliance Certificate for the Quarterly Period ending on the last day of the relevant Six Month Period.
(f) If the Compliance Certificate for one Quarterly Period demonstrates that Total TCN Group Debt on the relevant Quarter Day is less than 3.5 times Consolidated Annualised TCN Group Net Operating Cashflow calculated by reference to the Six Month Period ending on such Quarter Day, then the Borrower's obligations under paragraph (a) above shall be suspended until the delivery of the Quarterly Management Accounts for the subsequent Quarterly Period (the "SUBSEQUENT ACCOUNTS") are delivered. If the Compliance Certificate in respect of that subsequent Quarterly Period also demonstrates that Total TCN Group Debt on the relevant Quarter Day is less than 3.5 times Consolidated Annualised TCN Group Net Operating Cashflow calculated by reference to the Six Month Period ending on such subsequent Quarter Day then such suspended obligations shall be extinguished; if not, then such suspended obligations shall take effect as of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit delivery of the Lenders Subsequent Accounts but otherwise in the form received accordance with any necessary endorsement or assignment:
paragraph (Aa) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeabove.
Appears in 1 contract
Mandatory Prepayment. (i) If at Not later than the third Business Day immediately following the date of the receipt thereof by Borrower, an amount equal to 100% of the cash proceeds (net of all reasonable and customary payments, fees, commissions and expenses (including reasonable fees and expenses of legal counsel and investment banking fees and expenses, sales commissions and relocation fees and expenses) incurred in connection with such transaction from any time Qualified Debt Financing, shall be applied as mandatory prepayment of principal of and accrued interest on (x) first, the Revolving Credit Exposure then outstanding Tranche B Loans, and (for any Revolving Lender or for all Revolving y) second, once no Tranche B Loans remain outstanding, the then outstanding Tranche A Loans, in each case on a pro rata basis with respect to the applicable Lenders. To the extent there are proceeds remaining after application in accordance with the foregoing clauses (x) exceeds and (y), the Revolving Credit Limit, Borrower Tranche B Commitments shall immediately prepay the outstanding Revolving Loans be reduced by the amount equal to such excess proceeds until reduced to $0, then if any such excess proceeds still remain, the Tranche A Commitments shall be reduced by an amount equal to such remaining excess proceeds until reduced to $0, in each case on a pro rata basis with respect to the applicable Lenders. Notwithstanding the foregoing, if the Qualified Debt Financing is of a type set forth in clause (b) of the definition of such term, such proceeds shall be applied first, to the reduction of the Tranche B Commitments until reduced to $0, then if any excess plus all accrued proceeds still remain, to the reduction of the Tranche A Commitments by an amount equal to such remaining excess proceeds until reduced to $0, in each case on a pro rata basis with respect to the applicable Lenders and unpaid interest on the amount so prepaidsecond, as set forth in foregoing clauses (x) and (y).
(ii) No Not later than five (5) the third Business Days Day immediately following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Eventthe receipt thereof by Borrower, Borrower shall notify Administrative Agent in writing that it wishes an amount equal to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds proceeds (net of all reasonable and customary payments, fees, commissions and expenses (including reasonable fees and expenses of legal counsel and investment banking fees and expenses, sales commissions and relocation fees and expenses) incurred in connection with such transaction from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower Qualified Equity Financing shall be permitted applied as mandatory prepayment of principal of and accrued interest on (x) first, the then outstanding Tranche B Loans, and (y) second, once no Tranche B Loans remains outstanding, the then outstanding Tranche A Loans, in each case on a pro rata basis with respect to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds Lenders. To the extent there are not reinvested within 365 days from proceeds remaining after application in accordance with the applicable Loan Party’s receipt of such Net Proceeds foregoing clauses (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(ax) and (d)y), commencing with the fiscal year ending January 2Tranche B Commitments shall be reduced by the amount equal to such excess proceeds until reduced to $0, 2022then if any such excess proceeds still remain, Borrower the Tranche A Commitments shall prepay the Term Loans in be reduced by an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied remaining excess proceeds until reduced to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments$0, in each case for on a pro rata basis with respect to the preceding clauses applicable Lenders.
(1iii) and In the event an Asset Sale (2as defined in the Indenture) solely occurs, Borrower shall, to the extent permitted by the Indenture, use, or cause its Restricted Subsidiary to use, to the extent not reinvested in Additional Assets (as defined in the Indenture) within the time period required by the Indenture, the Net Cash Proceeds (as defined in the Indenture) therefrom to the prepayment of the Loans, which shall be applied to the principal of and accrued interest on (x) first, the outstanding Tranche B Loans and (y) second, once no Tranche B Loans remain outstanding, the then outstanding Tranche A Loans. In connection with any such prepayments or repurchases are financed with Internally Generated Cash. prepayment, Borrower shall deliver reduce the Commitments to Administrative Agent a payment notification the extent required by the Indenture.
(iv) Once terminated, such Commitments may not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticebe reinstated.
Appears in 1 contract
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for Loan Party or any Revolving Lender Subsidiary receives Net Cash Proceeds from any Disposition or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, Extraordinary Receipt or for the account ofNet Casualty Proceeds, the Borrower (or shall notify the Lenders and the Agent in writing thereof. Unless the Required Lenders have sent written notice to the Borrower, by the third Business Day after the date on which the applicable Loan Party) on Party or after the date hereof and the end of any election periods set forth belowSubsidiary received such proceeds, the following amounts Borrower shall be paid prepay the Obligations within five Business Days after such receipt in an amount equal to Administrative Agent 100% of such Net Cash Proceeds from any Disposition or Extraordinary Receipt or Net Casualty Proceeds (or such lesser amount as the Required Lenders may specify) (together with payment to the Agent, for the ratable benefit of the Lenders Lenders, of the amounts described in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)Section 2.12.2); provided thatprovided, if within 20 days after however, that the date Loan Parties may, in lieu of such Casualty Eventprepayment, Borrower shall notify Administrative Agent in writing that it wishes to reinvest retain a portion of such Net Casualty Proceeds and Net Cash Proceeds from Extraordinary Receipts (but not, for clarity, Net Cash Proceeds from Dispositions) in an aggregate amount not to exceed $250,000 in any Fiscal Year and $750,000 in any period of three consecutive Fiscal Years, so long as such Net Casualty Proceeds and Net Cash Proceeds from Extraordinary Receipts (y) are used to repair or replace the damaged assets damaged, destroyed or condemned with like or similar assets of substantially equal or better value or utility or are otherwise reinvested in assets that are subject to a security interest in favor of Collateral Agent and that are useful (other than inventory (raw or finished goods)) then used or usable in the business of the Loan Parties, then in each case, within 180 days (or such longer period of time as the Required Lenders shall approve in their sole discretion, such approval not to be unreasonably withheld as long as the Borrower shall be permitted is and has been diligently working to defer such prepayment for a period repair or replace the damaged asset but not longer than an additional 180 days) of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)proceeds, and (2z) any voluntary prepayments of are utilized by the Reovlving Facility solely to Loan Parties for purposes that are not inconsistent with this Agreement and the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeother Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Baudax Bio, Inc.)
Mandatory Prepayment. (a) If as of the last day of any calendar quarter the LTV Ratio exceeds the Permitted LTV Ratio, but the LTV Ratio is not greater than 60%, and provided that no Event of Default has occurred and is continuing, Borrower shall either (i) If at any time add additional Real Property Assets to the Revolving Credit Exposure Unleveraged Assets within ninety (for any Revolving Lender or for all Revolving Lenders90) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount days of the excess plus all accrued and unpaid interest on date the amount so prepaid.
LTV Ratio exceeded the Permitted LTV Ratio, in accordance with the provisions of Section 3.3, or (ii) No later than pay to the Lead Agent, for the account of the Banks, or pay to the holder(s) of any outstanding Unsecured Debt, within 90 days of the date the LTV Ratio exceeded the Permitted LTV Ratio, in each case in an amount such that the LTV Ratio subsequent to such payment is in compliance with the Permitted LTV Ratio. In the event that the LTV Ratio exceeds 60%, then Borrower shall, within five (5) Domestic Business Days following the earlier of from the date such amounts are received bythe Permitted LTV Ratio is exceeded, or pay to the Lead Agent, for the account ofof the Banks, or pay to the holder(s) of any outstanding Unsecured Debt, an amount such that the LTV Ratio subsequent to such payment is in compliance with the Permitted LTV Ratio.
(b) Borrower shall not sell or release an Unleveraged Asset unless after giving effect to such sale or release, either
(i) Borrower shall remain in compliance with the provisions hereof, including without limitation, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
5.8, or (Cii) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount at least equal to to, the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum greater of (1x) voluntary prepayments the amount required such that the LTV Ratio remains in compliance with the Permitted LTV Ratio and the Unleveraged Assets Minimum Debt Service Coverage after such sale or release calculated on a pro forma basis (i.e., calculated as though the contemplated transaction has --- ----- ---- occurred as of the Term Loans made during such period date four (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii4) in the fiscal year of such prepaymentquarters previously), and (2y) any voluntary prepayments the amount required such that the Borrower, on a pro forma basis (i.e., calculated as --- ----- ---- though the contemplated transaction had occurred as of the Reovlving Facility solely date four (4) quarters previously), remains in compliance with the requirements of Section 5.8.
(c) In the event that the Unleveraged Assets Minimum Debt Service Coverage is not maintained as of the last day of a calendar quarter, the Borrower will either (i) add a New Acquisition or a Real Property Asset to the extent such prepayment is accompanied by Unleveraged Assets in accordance with Section 3.3 which, on a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses pro forma basis --------- (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.i.
Appears in 1 contract
Sources: Revolving Credit Agreement (Trinet Corporate Realty Trust Inc)
Mandatory Prepayment. (i) If at On the date of delivery of a Borrowing Base Certificate pursuant to Section 6.1(a)(v), but in any time event, within 5 days of becoming aware of any Borrowing Base Deficiency or Loan Balance Deficiency, the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower Borrowers shall immediately prepay the outstanding Revolving Loans by the in an amount of the excess plus all equal to such Borrowing Base Deficiency or such Loan Balance Deficiency, as applicable, together with interest accrued and unpaid interest on the amount or amounts prepaid; provided, except during the continuance of a Default or an Event of Default, to the extent that all or any portion of a Borrowing Base Deficiency occurs as the result of a casualty loss, damage, destruction or taking by condemnation of any Collateral, (A) such prepayment shall not be required while Borrower is proceeding diligently to replace, repair or restore such Collateral (or while Borrower is settling its insurance claim with respect thereto), (B) proceeds from insurance covering loss, damage or destruction, or from any taking, of any Collateral not in excess of $1,000,000 for any one occurrence shall not be required to be so prepaid.
prepaid to the extent such insurance proceeds are used to replace, repair or restore the Collateral in respect of which such proceeds were paid, and (iiC) No later than proceeds from insurance covering loss, damage or destruction, or from any taking, of any Collateral in excess of $1,000,000 for any one occurrence shall not be required to be so prepaid to the extent that such insurance proceeds are deposited into a bank account maintained at a bank satisfactory to Agent and subject to a blocked account agreement in form and substance satisfactory to Agent, granting a perfected first priority security interest in such account to the Agent for the benefit of itself and the Lenders (a "Blocked Account") and used to replace or restore the properties or assets in respect of which such proceeds were paid, and if, in each case, the Borrower delivers a certificate to the Agent within five (5) Business Days following the earlier of the date receipt of such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts proceeds stating that such proceeds shall be paid used to Administrative Agent for the ratable benefit of the Lenders replace, repair or restore any such Collateral as soon as reasonably practicable, but in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided thatno event to exceed 18 months, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds proceeds (or if so committed which certificate shall set forth estimates of the proceeds to be reinvested so expended) and Agent shall disburse such proceeds from the Blocked Account from time to time, upon Borrower's request, to pay the costs of such replacement, repair or restoration. If all or any portion of such proceeds not so applied to as prepayments are not so used within the restoration period specified in such 365-day periodrelevant certificate delivered to Agent, reinvested within 180 days after such 365-day period), then the applicable Loan Party remaining portion shall be required prepaid on the last day of such specified restoration period. The principal amount of each prepayment shall be applied (i) first to make Loans of any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by Tranche in respect of which there is a Borrowing Base Deficiency and (ii) then to any Loan Party Balance Deficiency, with respect amounts prepaid solely under this clause (ii) to reimbursements due be applied to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% Loans of any Net Proceeds of a Specified Equity Contribution, plus Tranche or Tranches as determined by the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeBorrower.
Appears in 1 contract
Sources: Loan Agreement (Sunterra Corp)
Mandatory Prepayment. (i) If at any time a Credit Facility is accelerated during the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limitcontinuance of an Event of Default, Borrower shall immediately prepay pay to Agent, for payment to each Lender in accordance with its respective Pro Rata Share, an amount equal to the sum of: (i) all outstanding Revolving Loans by the amount principal of the excess Credit Facility and all other Obligations, plus all accrued and unpaid interest on the amount so prepaid.
thereon, (ii) No later than five any fees payable under the Fee Letters by reason of such prepayment, (5iii) the Applicable Prepayment Fee as specified in the Credit Facility Schedule for the Credit Facility being prepaid, and (iv) all other sums that shall have become due and payable, including Protective Advances. Additionally, at the election of Agent, Borrower shall prepay the Credit Facilities (to be allocated pro rata among the outstanding Credit Extensions under all Credit Facilities) in the following amounts: (A) within three (3) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof on which any Credit Party (or Agent as loss payee or assignee) receives any casualty proceeds in excess of Two Million Dollars ($2,000,000) for personal property or real property, in respect of assets upon which Agent maintained a Lien, an amount equal to one hundred percent (100%) of such proceeds (net of out-of-pocket expenses and, in the case of personal property, repayment of any permitted purchase money debt encumbering the personal property that suffered such casualty), or such lesser portion of such proceeds as Agent shall elect to apply to the Obligations; and (B) upon receipt by any Credit Party of the proceeds of any asset disposition of personal property not made in the Ordinary Course of Business (other than transfers permitted by Section 7.1) an amount equal to one hundred percent (100%) of the net cash proceeds of such asset disposition (net of out-of-pocket expenses and repayment of any permitted purchase money debt encumbering such asset), or such lesser portion as Agent shall elect to apply to the Obligations. Notwithstanding the foregoing, (a) so long as no Default or Event of Default has occurred and is continuing, Borrower shall have the option of applying the proceeds of any casualty policy up to Two Million Dollars ($2,000,000) in the aggregate with respect to any property loss in any one year, toward the replacement or repair of destroyed or damaged property; provided that any such replacement or repaired property (x) shall be of greater, equal, or like value as the replaced or repaired Collateral and (y) shall be deemed Collateral in which Agent and the end Lenders have been granted a first priority security interest (subject only to Permitted Liens that may have priority by operation of any election periods set forth belowapplicable Law or by the terms of a written intercreditor or subordination agreement entered into by Agent), (b) after the following amounts shall occurrence and during the continuance of a Default or Event of Default, all proceeds payable under such casualty policy shall, at the option of Agent, be paid payable to Administrative Agent Agent, for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided thatLenders, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business on account of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeObligations.
Appears in 1 contract
Sources: Credit and Security Agreement (Recursion Pharmaceuticals, Inc.)
Mandatory Prepayment. (i) If at On the date of receipt by Borrower or any time of its Subsidiaries of any Cash proceeds from (i) the Revolving Credit Exposure incurrence of any Indebtedness which does not constitute Permitted Indebtedness or (for ii) any Revolving Lender or for all Revolving Lenders) exceeds Disposition which does not constitute a Permitted Disposition, the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the in an aggregate amount equal to 100% of the excess plus all accrued and unpaid interest on the amount so prepaidsuch proceeds.
(ii) No later than [Reserved].
(iii) Within three (3) Business Days of the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, the Borrower shall prepay the outstanding principal of the Loans in accordance with Section 2.05(c) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection therewith; provided, that such Net Cash Proceeds shall not be required to be so used to prepay the Obligations to the extent that (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) the Borrower delivers a certificate to the Administrative Agent within five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party Extraordinary Receipt stating that such Net Cash Proceeds shall be required used to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further thatreplace, notwithstanding the foregoingrepair, Net Proceeds obtained by any Loan Party with respect restore or improve such Collateral Property within a period specified in such certificate not to reimbursements due to loss of cash exceed one hundred eighty (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45180) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Cash Proceeds (or if so committed which certificate shall set forth estimates of the Net Cash Proceeds to be reinvested within such 365-day period, reinvested within 180 days after such 365-day periodso expended), then (C) such Net Cash Proceeds are deposited in an account subject to a springing Control Agreement, and (D) such Net Cash Proceeds are used to replace, repair, restore or improve such Collateral Property prior to the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after period specified in the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year certificate furnished pursuant to Sections 8.1(aclause (B) and (d))above. Notwithstanding the foregoing, commencing with upon the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum earlier of (1) voluntary prepayments the expiration of the Term Loans made during such period (other than voluntary prepayments applied specified in the relevant certificate furnished to prepay future amortization payments that would be due the Administrative Agent pursuant to Section 3.2(a)(iiclause (B) in the fiscal year of such prepayment), above and (2) any voluntary prepayments the occurrence of a Default or an Event of Default, such Net Cash Proceeds, if not theretofore so used, shall be used to prepay the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, Obligations in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeaccordance herewith.
Appears in 1 contract
Sources: Financing Agreement (Wheeler Real Estate Investment Trust, Inc.)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Parties, then definition of “Permitted Dispositions,” to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelve (12) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this applied within five Business Days after such date toward the prepayment of Term Loans as set forth in Section 3.3(b)(ii)(E2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to Section 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in Section 2.17(f) and the amount expended by the Borrower pursuant to Sections 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date by on which the compliance certificate of the Borrower are required has been delivered pursuant to deliver their Compliance Certificate and financial statements for the applicable fiscal year Section 5.01(d).
(e) [Reserved].
(f) Any prepayment of any Term Loans pursuant to Sections 8.1(a2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that (i) any prepayment of any Term Loans pursuant to Section 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the Borrower. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow, the amount of the prepayment of the Term Loans required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such Qualifying Secured Debt then outstanding and (d)iii) any Lender may elect to decline its share of any prepayment pursuant to clause (a), commencing with (b) or (d) above by giving notice to the fiscal year ending January 2Administrative Agent within one Business Day following the date the Borrower gives notice of such prepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”). Subject to the foregoing, 2022outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No prepayment of LIBO Loans of any Class shall be permitted pursuant to this Section 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within fifteen (15) Business Days of receiving a written demand for such reimbursement which sets forth the calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall hold all amounts required to be applied to LIBO Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable LIBO Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) The Borrower shall prepay all Non-Converted Term B-45 Loans on the Term Loans in Amendment No. 69 Effective Date.
(h) Notwithstanding any other provisions of this Section 2.17, (A) to the extent that any or all of the Excess Cash Flow of a Foreign Subsidiary is prohibited or delayed by any requirement of law from being repatriated to the Loan Parties, an amount equal to the applicable portion of Excess Cash Flow Percentage multiplied so affected will not be required to be applied to repay Term Loans at the times provided in clause (d) above, as the case may be, but only so long, as the applicable requirement of law will not permit repatriation to the Loan Parties (the Loan Parties hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit repatriation), and once a repatriation of any of such affected Excess Cash Flow for is permitted under the applicable requirement of law, an amount equal to such fiscal year then ended minus Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the sum of (1) voluntary prepayments repayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loans, and (2B) any voluntary prepayments of the Reovlving Facility solely to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow of a Foreign Subsidiary could have an adverse tax consequence with respect to such prepayment is accompanied by a permanent reduction of the Reovlving CommitmentsExcess Cash Flow, in each case for the preceding clauses (1) and (2) solely an amount equal to the extent such prepayments or repurchases are financed with Internally Generated CashExcess Cash Flow so affected may be retained by the applicable Foreign Subsidiary. Borrower For the avoidance of doubt, nothing in this Agreement, including Section 2.17 shall deliver be construed to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior require any Foreign Subsidiary to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticerepatriate cash.
Appears in 1 contract
Mandatory Prepayment. The outstanding Obligations shall be subject to prepayment as follows:
(a) If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any Collateral (other than the sale of Collateral (other than Real Estate, Capital Stock and Intellectual Property) in the ordinary course of business and the transfer of any Collateral among Stores and other locations of the Loan Parties), to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, provided that no Event of Default has occurred and is continuing, (i) If the proceeds therefrom are (a) utilized for purposes of replacing or repairing the assets in respect of which such proceeds were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds (or, in the case of any disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate, within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds) or (b) in the case of any disposition of Real Estate listed on Schedule 1.1(b), reinvested in additional Real Estate within twelve (12) months of the receipt of such proceeds or within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds and (ii) the aggregate amount at any time of such reinvested proceeds (A) in the Revolving Credit Exposure case of any such sale, transfer or other disposition of any such Collateral pursuant to a sale and leaseback transaction, is equal to or less than $10,000,000 and (B) in the case of any such sale, transfer or other disposition of such Collateral (other than pursuant to a sale and leaseback transaction and other than a disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate) is equal to or less than $10,000,000; or
(b) If on any date any Loan Party shall have received Net Proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party, to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds;
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (w)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f); and
(d) If, for any Revolving Lender or for all Revolving LendersFiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) exceeds the Revolving Credit Limit, Borrower shall immediately prepay ECF Percentage of such Excess Cash Flow minus (ii) the outstanding Revolving Loans by the principal amount of Term Loans optionally prepaid pursuant to Section 2.16 during such Fiscal Year toward the excess plus all accrued and unpaid interest prepayment of the Term Loans as set forth in SECTION 2.17(f) (it being understood that such payment for the Fiscal Year ending February 28, 2012 was made prior to the Amendment No. 1 Effective Date). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the amount so prepaiddate on which financial statements of the Borrower have been delivered pursuant to SECTION 5.01(a).
(iie) Reserved.
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that any prepayment of any Term Loans pursuant to SECTION 2.17(c) shall be applied to repay Term Loans of each Class with an earlier Maturity Date prior to being applied to repay any Term Loans of any other Class with a later Maturity Date (and, if two Classes of Term Loans have the same Maturity Date, shall be applied on a pro rata basis to such Classes). Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied first, to the remaining scheduled installments of principal of such Term Loans pursuant to SECTION 2.04 that are due within 24 months of such prepayment and thereafter to the remaining scheduled installments of principal of the Term Loans of such Class on a pro rata basis. Subject to the foregoing, outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No later than prepayment of LIBO Loans of any Class shall be permitted pursuant to this SECTION 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within five (5) Business Days following of receiving a written demand for such reimbursement which sets forth the earlier calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the date such amounts are received by, or for the account ofBorrower, the Borrower (or Administrative Agent shall hold all amounts required to be applied to LIBO Loans of a particular Class in a Cash Collateral Account and will apply such funds to the applicable Loan Party) on or after the date hereof and LIBO Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit other Event of the Lenders in the form received with any necessary endorsement or assignment:Default).
(Ag) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, The Borrower shall prepay all Non-Converted Term B-1 Loans on the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated CashAmendment No. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice13 Effective Date.
Appears in 1 contract
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Mandatory Prepayment. (i1) If at The Company shall notify the Administrative Agent immediately upon becoming aware of any time Change of Control. Upon receipt of such notice and for a period of 90 days thereafter, the Revolving Credit Exposure (for Required Lenders shall be entitled, by written notice to the Company received within such period, to terminate the Commitments in whole and require the Company and the Designated Borrower to prepay all outstanding Advances within five Business Days of its receipt of such notice, together with any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on thereon to the amount so prepaiddate of such prepayment and any other amounts due hereunder. Notwithstanding any other provision contained herein, a Change of Control shall not, in and of itself, constitute a Default hereunder.
(2) The Company shall (i) on the date of any Debt or Equity Issuance yielding total cash proceeds in an amount at least equal to $100,000,000 (a “Qualifying Issuance”) and (ii) No later than five (5) Business Days following the earlier of on the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth belowDebt or Equity Issuance other than a Qualifying Issuance (a “Non-Qualifying Issuance”) yielding total cash proceeds, taken together with the following amounts shall be paid total cash proceeds of all prior Non-Qualifying Issuances as to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds which a prepayment has not yet been made under this paragraph, in excess of $2,000,000 individually or 100,000,000 (such excess amount, the “Excess Proceeds”), prepay and cause the Designated Borrower to prepay all outstanding Advances in an aggregate principal amount equal to such total cash proceeds (in the aggregate over case of the term foregoing clause (i)) or such Excess Proceeds (in the case of this Agreement in respect of any Casualty Event affecting Collateral the foregoing clause (plus the Applicable Premium (if anyii)); provided that, if within 20 days after net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses (such net amount, the “Net Amount”), together with any accrued and unpaid interest thereon to the date of such Casualty Eventprepayment and any other amounts due hereunder, Borrower shall notify Administrative Agent and, in writing that it wishes to reinvest such Net Proceeds to replace connection therewith, the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower Commitments shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required permanently reduced by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the an aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to such Net Amount, such reduction to be applied to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments Commitments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in Lenders ratably based on the fiscal year of such prepayment), and (2) any voluntary prepayments aggregate amount of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction Commitments of each of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeLenders.
Appears in 1 contract
Sources: Credit Agreement (Stanley Works)
Mandatory Prepayment. (i) If for any reason the Total Revolving Outstandings at any time exceed the Aggregate Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds Commitments then in effect, the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b)(i) unless after the prepayment in full of the excess plus all accrued and unpaid interest on Revolving Loans the amount so prepaidTotal Revolving Outstandings exceed the Aggregate Revolving Credit Commitments then in effect.
(ii) No later In addition to the required payments of principal of the Term Loan set forth in Section 2.08 and any optional or mandatory payments of principal of the Revolving Loans effected under subsection (a) or (b)(i) above, the Borrower shall make the following required prepayments of the Term Loan and the Revolving Loans, each such payment to be made to the Administrative Agent for the benefit of the applicable Lenders within the time period specified below.
(A) In the event of a Disposition (other than a Disposition permitted under Sections 7.05(b) through (e)), the Borrower shall make, or cause each applicable Subsidiary to make, a prepayment in an amount equal to (i) 100% of the excess of the Net Cash Proceeds of such Disposition over $15,000,000, and (ii) 100% of the excess of the Net Cash Proceeds from any such Disposition (minus any prepayment made pursuant to clause (i) above) over (x) together with the Net Cash Proceeds from all such Dispositions occurring within the same fiscal year, $25,000,000 or (y) together with the aggregate of the Net Cash Proceeds from all such Dispositions occurring after the Closing Date, $75,000,000, whichever of (x) or (y) would give rise to the greater prepayment amount. Each such prepayment to be made within ten (10) days of the receipt of the Net Cash Proceeds of any such Disposition and upon not less than five (5) Business Days following Days’ prior written notice to the earlier Administrative Agent, which notice shall include a certificate of a Responsible Officer of the date Borrower setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved]Disposition;
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, The Borrower shall notify Administrative Agent make, or cause each applicable Subsidiary to make, a prepayment in writing that it wishes an amount equal to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business one hundred percent (100%) of the Loan PartiesNet Cash Proceeds of each Debt Issuance, then the Borrower shall be permitted to defer each such prepayment for a period to be made within ten (10) Business Days of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall proceeds and upon not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within less than five (5) Business Days after Days’ prior written notice to the date by Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower are required to deliver their Compliance Certificate setting forth in reasonable detail the calculations utilized in computing the Net Cash Proceeds of such issuance and financial statements for the applicable fiscal year pursuant to Sections 8.1(aamount of such prepayment; and
(C) and (d)), commencing with the fiscal year ending January 2, 2022, The Borrower shall prepay the Term Loans make, or cause each applicable Subsidiary to make, a prepayment in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of twenty-five percent (125%) voluntary prepayments of the Term Loans made during such period Net Cash Proceeds of each Equity Issuance (other than voluntary prepayments applied Permitted Equity Issuances), each such prepayment to prepay future amortization payments that would be due pursuant made within ten (10) Business Days of receipt of such proceeds and upon not less than five (5) Business Days’ prior written notice to Section 3.2(a)(ii) the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the fiscal year calculations utilized in computing the Net Cash Proceeds of such issuance and the amount of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such ; Each prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment received pursuant to this Section 3.3(b2.06(b) and Administrative Agent shall promptly notify be applied: First, to the then outstanding principal installments of the Term Loan on a pro rata basis until the Term Loan is paid in full; provided, however, that any Term Loan Lender may decline to accept any such prepayment, and, in the event of each Lender such decline, the pro rata basis for payment to the other Term Loan Lenders shall be determined without inclusion of such noticedeclining Term Loan Lender and the amount of the Term Loan owing thereto; and second, to the outstanding Revolving Loans and Unreimbursed Amounts (including L/C Borrowings); such prepayments of the Revolving Credit Facility made pursuant to this Section 2.06(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to this Section 2.06(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. Any prepayment of Revolving Loans pursuant to this Section 2.06 shall not, ipso facto, reduce the Aggregate Revolving Credit Commitments without notice from the Borrower pursuant to Section 2.07.
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Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(Fa) Within five (5) Business Days after of the date by which Borrower are required consummation of any Qualifying Debt Transaction, the Issuers shall cause to deliver their Compliance Certificate be applied an amount equal to the Sterling Equivalent of 80.0% of the total gross proceeds raised in respect of such Qualifying Debt Transaction against prepayment of any accrued and financial statements for unpaid interest on, and outstanding principal amount, of this Note, together with the applicable fiscal year pursuant Future Loss Payoff Amount; provided that GFI and its Subsidiaries shall be entitled to Sections 8.1(aretain and exclude from the calculation and prepayment requirement above an amount (the “Retained QDT Proceeds”) from all Qualifying Debt Transactions since the Issue Date not exceeding in the aggregate the sum of (A) the lesser of (x) $750,000,000 (or its dollar equivalent) and (d)y) the amount of such total gross proceeds that (1) are used or will be used to repay GHI’s then outstanding 7.200% Senior Notes due 2021 and 7.625% Senior Notes due 2021, (2) are used or will be used to pay reasonable fees (including discounts, premiums and commissions), commencing expenses, interest and other costs related to such Qualifying Debt Transaction or the payoff of such Senior Notes and (3) are used or will be used to fund such other uses in a manner substantially consistent with the fiscal year ending January uses described by the Issuers to the Holder in writing prior to the Issue Date (including any reserves established for any such uses) plus (B) the amount of any applicable Required Retention Amount; provided, further that in connection with any amounts constituting Retained QDT Proceeds, (x) at the time of such determination no Event of Default has occurred and is continuing (or would result therefrom) and (y) the Administrative Issuer has, on or prior to the date of consummation of any Qualifying Debt Transaction, delivered a certificate signed by a Senior Officer of the Administrative Issuer to the Holder with supporting evidence in reasonable detail as to the calculation of the Retained QDT Proceeds, including amounts retained pursuant to clause (A) above and the Required Retention Amount set forth in clause (B) above and certifying that an amount equal to the Required Retention Amount shall be contributed to GMICO to avoid a capital deficiency giving rise to the Required Retention Amount. It is understood and agreed that to the extent the Issuers or any of their Subsidiaries no longer need or intend in good faith to so apply any amounts constituting Retained QDT Proceeds pursuant to clause (A)(y) or clause (B) above for the uses set forth therein (including any such amounts held or reserved for such uses), such amounts no longer so needed or intended to be so applied shall be subject to prepayment pursuant to the calculation set forth in this clause (a) within five (5) Business Days of such determination without giving regard to the previous retention of Retained QDT Proceeds by such amount.
(b) Within five (5) Business Days of the consummation of any Qualifying Equity Transaction, the Issuers shall cause to be applied an amount equal to the Sterling Equivalent of 100% of the total Net Cash Proceeds raised in respect of such Qualifying Equity Transaction against prepayment of any accrued and unpaid interest on and outstanding principal amount of this Note, together with the Future Loss Payoff Amount; provided that GFI and its Subsidiaries shall be entitled to retain an amount (the “Retained QET Net Proceeds”) from all Qualifying Equity Transactions since the Issue Date not exceeding in the aggregate the sum of (A) the lesser of (x) $475,000,000 less the U.S. Dollar Equivalent Amount of the Specified Sale Holdback Amount (which for purposes of this Section 6.2(b), shall be the equivalent amount of US Dollars determined on the basis of the contractual rate which the Note Parties were able to obtain for exchanges from AUD to US Dollars as of the Trade Date (as defined in the Block Trade Sale Agreement) as has been certified to the Holder by the Administrative Issuer pursuant to Section 6.2(f)(i)) and (y) the amount of such proceeds that (1) are used or will be used to repay GHI’s then outstanding 7.200% Senior Notes due 2021 and 7.625% Senior Notes due 2021, (2) are used or will be used to pay reasonable fees (including discounts, premiums and commissions), expenses, interest and other costs related to the payoff of such Senior Notes and (3) without duplication of the amounts netted pursuant to the definition of Net Cash Proceeds, are used or will be used to fund such other uses in a manner substantially consistent with the uses described by the Issuers to the Holder in writing prior to the Issue Date (including any reserves established for any such uses) plus (B) the amount of any applicable Required Retention Amount; provided, further that in connection with any amounts constituting Retained QET Net Proceeds, (x) at the time of such determination no Event of Default has occurred and is continuing (or would result therefrom) and (y) the Administrative Issuer has, on or prior to the date of consummation of any Qualifying Equity Transaction, delivered a certificate signed by a Senior Officer of the Administrative Issuer to the Holder with supporting evidence in reasonable detail as to the calculation of the Retained QET Net Proceeds, including amounts retained pursuant to clause (A) above and the Required Retention Amount set forth in clause (B) above and certifying that an amount equal to the Required Retention Amount shall be contributed to GMICO to avoid a capital deficiency giving rise to the Required Retention Amount. It is understood and agreed that to the extent the Issuers or any of their Subsidiaries no longer need or intend in good faith to so apply any amounts constituting Retained QET Net Proceeds pursuant to clause (A)(y) or clause (B) above for the uses set forth therein (including any such amounts held or reserved for such uses), such amounts no longer so needed or intended to be so applied shall be subject to prepayment pursuant to the calculation set forth in this clause (b) within five (5) Business Days of such determination without giving regard to the previous retention of Retained QET Net Proceeds by such amount.
(c) Immediately upon the occurrence of a Change of Control (or, in the case of clauses (b) and (c) of the definition thereof, within five (5) Business Days), the Issuers shall repay the outstanding principal amount of this Note, together with all accrued and unpaid interest thereon, and all other outstanding Obligations (including, for the avoidance of doubt, the Future Loss Payoff Amount).
(d) Upon the consummation or completion of the China Oceanwide Acquisition and solely to the extent that the China Oceanwide Acquisition results in at least $1,500,000,000 of capital contributions of which GFI and/or any of the Note Parties or their respective Subsidiaries is in receipt or possession, the Issuers shall, as promptly as practicable in light of the Note Parties’ then existing liquidity needs (as determined by the Note Parties in good faith) after such receipt or possession and in any event by June 30, 2022, Borrower cause to be applied such sums against prepayment in full of any accrued and unpaid interest on and all outstanding principal amount of this Note, together with the Future Loss Payoff Amount.
(e) Subject to and without duplication of any amounts required to be paid under Section 6.2(a) and (b) above (it being understood, for the avoidance of doubt, that any dividends or other distributions made out of the proceeds of any Qualifying Debt Transaction or Qualifying Equity Transaction shall prepay not give rise to any mandatory prepayment under this clause (e), so long as mandatory payments are made to the Term Loans extent required under Section 6.2(a) and (b) above), within five (5) Business Days of:
(i) (x) receipt of any dividends or other distributions in respect of any GMHI Owned Shares (including any GMHI Pledged Shares) by any Note Party (which will be deemed to be a pro rata dividend or distribution on all GMHI Owned Shares (including any GMHI Pledged Shares) whether or not in fact such dividend or distribution is pro rata), or (y) receipt by GFI or any of Subsidiaries (other than members of the GMHI Group) of any proceeds of (1) any intercompany loan, note or advance made from a member of the GMHI Group or (2) the payment or prepayment by a member of the GMHI Group on any intercompany loan, note or advance (whether by way of payment of principal or interest) made by GFI or any Subsidiaries (other than members of the GMHI Group) to a member of the GMHI Group, the Issuers shall cause to be applied an amount equal to the Sterling Equivalent of 100% of the cash proceeds of such dividend, distribution, or amounts in respect of any intercompany note or advance (as if such amounts in respect of such intercompany note or advance were a pro rata distribution on all GMHI Owned Shares (including the GMHI Pledged Shares)) against prepayment of any accrued and unpaid interest on and outstanding principal amount of this Note, together with the Future Loss Payoff Amount;
(ii) any GMHI Distribution Equivalent Transaction that is not otherwise subject to subclause (i) above, the Note Parties shall be deemed to have received a pro rata distribution on all GMHI Owned Shares (including any GMHI Pledged Shares) in cash in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum Sterling Equivalent of (1) voluntary prepayments 100% of the Term Loans made during value of such period GMHI Distribution Equivalent Transaction, and the Issuers shall cause to be prepaid in cash in the amount of such deemed distribution any accrued and unpaid interest on and outstanding principal amount of this Note, together with the Future Loss Payoff Amount; provided, that notwithstanding any requirement to make any payments referred to in clauses (e)(i) and (e)(ii) above, so long as no Event of Default has occurred and is continuing (or would result therefrom), GFI and its Subsidiaries shall be entitled (x) in the case of clause (e)(i)(x) above, to retain proceeds of dividends or other distributions attributable after giving effect to any pro rata allocation to the GMHI Owned Shares (other than voluntary prepayments applied the GMHI Pledged Shares), and not pay to prepay future amortization payments that would be due pursuant to Section 3.2(a)(iithe Holder, and (y) in the fiscal year case of such prepayment), and clause (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1e)(i)(y) and (2e)(ii) solely above, with respect to the extent such prepayments amounts attributable to the GMHI Owned Shares (excluding the GMHI Pledged Shares), to not pay to the Holder, in an aggregate amount across clauses (x) and (y) retained and/or not paid over not exceeding $50,000,000 (or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two the equivalent thereof) in each of the fiscal years ending December 31, 2021 and December 31, 2022.
(2f) Within five (5) Business Days prior of:
(i) the Specified Sale by any Note Party, the Issuers shall cause to each mandatory be applied an amount equal to the Sterling Equivalent of the Required Prepayment Amount of the Net Cash Proceeds received by or on behalf of the Note Parties in respect of the Specified Sale (including, for the avoidance of doubt, any “Advance Amount” as defined in the Block Trade Sale Agreement) (any such Net Cash Proceeds received in respect of the Specified Sale, the “Specified Sale Proceeds”) against prepayment pursuant of any accrued and unpaid interest on and outstanding principal amount of this Note; provided that, for purposes of this clause (f)(i), the “Required Prepayment Amount” shall be determined as follows:
(A) with respect to the first $200,000,000 of the Specified Sale Proceeds received by or on behalf of the Note Parties, the Required Prepayment Amount shall equal 100% of the Specified Sale Proceeds;
(B) with respect to the Specified Sale Proceeds in excess of $200,000,000 in the aggregate received by or on behalf of the Note Parties, but not in excess of $275,000,000, the Required Prepayment Amount shall equal 0% of the Specified Sale Proceeds (and, for the avoidance of doubt, GFI and its Subsidiaries shall be entitled to retain the Specified Sale Proceeds referred to this Section 3.3(bin this clause (B) and Administrative Agent not pay such amounts over to Holder); and
(C) with respect to the Specified Sale Proceeds in excess of $275,000,000 in the aggregate received by or on behalf of the Note Parties, the Required Prepayment Amount shall promptly notify each Lender equal 50% (and, for the avoidance of doubt, GFI and its Subsidiaries shall be entitled to retain 50% of the Specified Sale Proceeds referred to in this clause (C) and not pay such notice.amounts over to Holder)
Appears in 1 contract
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) aggregate principal amount of the Loans outstanding exceeds the Revolving Total Commitment Amount minus the Letter of Credit LimitObligations, then the Borrower shall immediately prepay pay to the outstanding Revolving Loans by Agent, for the account of each Bank, the amount of such excess (as a prepayment in respect of the excess Loans), plus all accrued and unpaid interest on the any amount so prepaiddue under SECTION 2.3(d) hereof as a result of such prepayment.
(ii) No later than In the event that the Borrower or any of its Subsidiaries sells or otherwise disposes of assets in any calendar year, and the book value of such assets, together with the book value of any other assets sold or disposed of by the Borrower and its Subsidiaries during such calendar year, are in excess of five percent (5%) Business Days following the earlier of the date book value of the total assets of the Borrower and its Subsidiaries on the first day of such amounts are received by, or for the account ofcalendar year, the Borrower (shall prepay the Loans from the Net Cash Proceeds received at any time by the Borrower or the applicable Loan Party) on its Subsidiaries from such sale or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, other disposition. The Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make also pay any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements amount due to loss of cash (whether under SECTION 2.3(d) hereof as a result of theftsuch prepayment or may, natural disaster or otherwisein lieu thereof, deposit the Net Cash Proceeds with the Agent, to be held pending expiration of Interest Periods until the earliest time at which such proceeds may be used to prepay the Loans in accordance herewith without the Borrower being obligated to pay any amounts which would have been due under SECTION 2.3(d) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);hereof had payment been made earlier.
(Ciii) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium Within ninety (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (4590) days after the date end of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable each fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2March 31, 20221998), the Borrower shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus reduced by the sum amount necessary to maintain a minimum of Four Million Dollars (1$4,000,000) voluntary prepayments of cash and cash equivalents on the Borrower's consolidated balance sheet at the end of such fiscal year.
(iv) In the event that the Borrower shall issue Equity Interests to a Person other than Wels▇ ▇▇▇▇▇▇ ▇▇ exchange for cash, or shall incur additional unsecured or subordinated Indebtedness other than the Wels▇ ▇▇▇▇▇▇ ▇▇▇debt, Borrower shall apply the proceeds so received in prepayment of the Term Loans made during such period as follows:
(other A) If the ratio of Funded Indebtedness to EBITDA, calculated in accordance with SECTION 7.18(a)(i) is greater than voluntary prepayments applied or equal to 4.75 : 1, then the Borrower shall prepay future amortization payments that would be due pursuant the Loans in an amount equal to Section 3.2(a)(iione hundred percent (100%) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely Net Cash Proceeds received by the Borrower.
(B) If the ratio of Funded Indebtedness to EBITDA, calculated in accordance with SECTION 7.18(a)(i) is less than 4.75 : 1, then the extent such prepayment is accompanied by a permanent reduction Borrower shall prepay the Loans in an amount equal to (I) twenty-five percent (25 %) of the Reovlving Commitments, in each case for Net Cash Proceeds received by the preceding clauses (1) and (2) solely to Borrower from the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender issuance of such notice.any additional
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Mandatory Prepayment. (i) If at Promptly upon the incurrence of any time Debt (other than capital lease obligations or the Revolving Credit Exposure (for any Revolving Lender or for all Revolving LendersIndebtedness) exceeds the Revolving Credit Limitowed to a Person other than Bank, Borrower shall immediately prepay make a prepayment to Bank in an amount equal to 100% of the outstanding Revolving Loans net cash proceeds received by the amount Loan Parties from the incurrence of the excess plus all accrued and unpaid interest on the amount so prepaidsuch Debt.
(ii) No later Promptly upon the sale, transfer or disposition of any assets or property by any Loan Party (other than five the sale of inventory in the ordinary course of business and the sale or disposal of obsolete, worn out or damaged equipment and inventory), Borrower shall make a prepayment to Bank in an amount equal to 100% of the net cash proceeds received by the Loan Parties from such sale, transfer or disposition; provided however, any net cash proceeds from the sale, transfer or disposition of assets of less than $5,000,000 in the aggregate received during any fiscal year of Borrower may be Reinvested by Borrower or such Subsidiary if the following conditions are satisfied: (5A) Business Days promptly following the earlier receipt of such net cash proceeds, Borrower provides to Bank a reinvestment certificate stating (1) that no Default or Event of Default has occurred and is continuing either as of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement receipt of such proceeds or assignment:
(A) [reserved];
(B) 100% as of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Eventreinvestment certificate, (2) that such proceeds have been received and (3) a description of the planned Reinvestment of such proceeds, (B) the Reinvestment of such proceeds is completed within 120 days and (C) no Default or Event of Default shall have occurred and be continuing at the time of the application of such proceeds to Reinvestment. If any such proceeds have not been Reinvested at the end of the periods provided above, Borrower shall notify Administrative Agent promptly pay such net cash proceeds to Bank to be applied in writing that it wishes accordance with this Section 2(c).
(iii) Promptly upon the issuance of any Equity Interests in Borrower or any of its Subsidiaries (unless otherwise waived by Bank in writing), Borrower shall make a prepayment to reinvest such Net Proceeds Bank in an amount equal to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business 50% of the net cash proceeds received by the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds Parties from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);such Equity Interests.
(Eiv) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing Beginning with the fiscal year ending January 2December 31, 20222023 and for each fiscal year thereafter, on or before 45 days after the end of such fiscal year (“ECF Payment Date”), Borrower will calculate the amount of the Excess Cash Flow as of the end of such fiscal year (such amount of Excess Cash Flow referred to herein as the “ECF Amount”), and Borrower shall prepay the Term Loans make a prepayment to Bank (an “Excess Cash Flow Payment”) in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments 25% of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in ECF Amount; provided, however, that, beginning with the fiscal year of ending December 31, 2024, in the event Borrower’s Senior Funded Debt to EBITDA Ratio is less than 2.00 to 1.00, such prepayment), prepayment shall not be required. All payments made under Section 2(c)(iv) and (2) any voluntary prepayments received by Bank shall be applied in payment of the Reovlving Facility solely Indebtedness in the following order: first, to outstanding principal amount of the Loans under the Term Note (in inverse order of maturities until paid in full); second, to Bank’s costs and expenses; third, to the extent such prepayment is accompanied by a permanent reduction outstanding principal amount of the Reovlving Commitmentsloans under the Revolving Credit Note until paid in full; fourth, in each case for the preceding clauses (1) and (2) solely to prepay any outstanding Indebtedness, including providing cash collateral any undrawn letters of credit issued hereunder; fifth, to the extent outstanding principal amount of the Loans under the Equipment Note; and sixth, any remaining amount to the Borrower. Any such prepayments reductions in the amount of the Notes as provided in this Section 2(c)(iv) shall be in addition to all scheduled principal payments and optional payments. No prepayment penalty or repurchases are financed premium shall be required with Internally Generated Cash. Borrower shall deliver respect to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each any mandatory prepayment made pursuant to this Section 3.3(b2(c)(iv) or any voluntary prepayment of the outstanding amounts of Notes as provided therein. All payments made under this Section 2(c) (other than under Section 2(c)(iv)) and Administrative Agent received by Bank shall promptly notify each Lender be applied in payment of the Indebtedness in the following order: first, to Bank’s costs and expenses; second, to outstanding principal amount of the Loans under the Term Note (in inverse order of maturities until paid in full); third, to outstanding principal amount of the loans under the Revolving Credit Note until paid in full; fourth, to the outstanding principal amount of the Loans under the Equipment Note; fifth, to prepay any outstanding Indebtedness, including providing cash collateral any undrawn letters of credit issued hereunder; and sixth, any remaining amount to the Borrower. Any such noticereductions in the amount of the Notes as provided in this Section 2(c) shall be in addition to all scheduled principal payments and optional payments. No prepayment penalty or premium shall be required with respect to any mandatory prepayment made pursuant to this Section 2(c) or any voluntary prepayment of the outstanding amounts of Notes as provided therein.
Appears in 1 contract
Sources: Credit Agreement (Ashford Inc.)
Mandatory Prepayment. (i) i If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the aggregate principal amount of the excess plus all accrued and unpaid interest on Loans outstanding exceeds the amount so prepaid.
(ii) No later than five (5) Business Days following Total Commitment Amount minus the earlier Letter of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan PartiesCredit Obligations, then the Borrower shall be permitted immediately pay to defer such prepayment the Agent, for a period the account of up to 365 days after each Bank, the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt amount of such Net Proceeds excess (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day periodas a prepayment in respect of the Loans), then the applicable Loan Party shall be required to make plus any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements amount due to loss of cash (whether under SECTION 2.3(D) hereof as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);such prepayment.
(C) 100% ii In the event that the Borrower or any of its Subsidiaries sells or otherwise disposes of any Net Proceeds asset, or any Stock of Borrower or any Subsidiary, in any calendar year (other than the sale or other disposition of assets that are obsolete or no longer used or useful in Borrower's business and having a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of value not exceeding $250,000 in any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) single transaction or Section 9.4(r) individually or $500,000 in the aggregate in excess any calendar year), the Borrower shall prepay the Loans from the Net Cash Proceeds received at any time by the Borrower or its Subsidiaries from such sale or other disposition. The Borrower shall also pay any amount due under SECTION 2.3(D) hereof as a result of $2,000,000 such prepayment or may, in lieu thereof, deposit the Net Cash Proceeds with the Agent, to be held pending expiration of Interest Periods until the earliest time at which such proceeds may be used to prepay the Loans in accordance herewith without the Borrower being obligated to pay any fiscal year amounts which would have been due under SECTION 2.3(D) hereof had payment been made earlier.
(plus the Applicable Premium iii Within sixty (if any)); provided that, if within forty-five (4560) days after the date end of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable each fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2March 31, 20222000), the Borrower shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus reduced by the sum amount necessary to maintain a minimum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.Four Million Dollars
Appears in 1 contract
Mandatory Prepayment. (i) If at any time from and after the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds Closing Date, the Revolving Credit LimitCompany, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received byBorrower, or for any of its Consolidated Subsidiaries receives proceeds from the account ofsale, the Borrower (transfer, assignment, conveyance or the applicable Loan Party) on or after the date hereof and the end refinancing of any election periods set forth belowan Unencumbered Project, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as x) prepay a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% portion of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Net Cash Flow Percentage multiplied Proceeds received by Excess the Borrower or the Company or the Borrower's pro rata share of Net Cash Flow for Proceeds received by such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Consolidated Subsidiary, and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by proceeds are not otherwise applied pursuant to clauses (y) or (z); (y) segregate the Net Cash Proceeds of such transaction in an escrow account with the Administrative Agent or with a permanent reduction financial institution reasonably acceptable to the Administrative Agent and apply such Net Cash Proceeds solely to a qualified, deferred exchange under ss.1031 of the Reovlving CommitmentsInternal Revenue Code for other real property that becomes an Unencumbered Project upon acquisition or with the prior written approval of the Requisite Lenders to another use, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments proceeds are not otherwise applied pursuant to clauses (x) or repurchases (z); or (z) complete an exchange of such Unencumbered Project for other real property of equivalent value under ss.1031 of the Internal Revenue Code so long as such other real property becomes an Unencumbered Project upon acquisition, to the extent such proceeds are financed not otherwise applied pursuant to clauses (x) or (y). If at any time from and after the Closing Date: (i) the Company or the Borrower merges or consolidates with Internally Generated Cash. another Person and the Company or Borrower, as the case may be, is not the surviving entity and does not control the management of such surviving entity, or (ii) the Company, the Borrower, any of its Affiliates or Consolidated Subsidiaries or the Management Company ceases to provide property management and leasing services to at least 80% of the total number of Projects in which the Borrower has a direct ownership interest (the date any such event shall occur being the "PREPAYMENT DATE"), the Borrower shall deliver be required to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior prepay the Loans in their entirety as if the Prepayment Date were the Revolving Credit Termination Date and, the Revolving Credit Commitments thereupon shall be terminated. The Borrower shall immediately make such prepayment together with interest accrued to each mandatory the date of the prepayment pursuant on the principal amount prepaid and shall return or cause to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender be returned all Letters of such notice.Credit to the applicable
Appears in 1 contract
Sources: Revolving Credit Agreement (Reckson Associates Realty Corp)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower financial statements are required to deliver their be delivered pursuant to Section 6.01(a) and the related Compliance Certificate and has been delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of Group Term Loans (allocated among the Group Term Loans at the discretion of the Borrower) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2ended on December 31, 20222017), Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus (B) the sum of (1) all voluntary prepayments of the Group Term Loans made under any Group Credit Agreement (including any voluntary prepayments of any term loans under any Group Credit Agreement prior to the Third Amendment Effective Date) (provided that, with respect to Discounted Voluntary Prepayments under any Group Credit Agreement, only the actual amount of cash used to consummate such prepayment shall be included in such calculation) during such period fiscal year and after the end of such fiscal year but prior to the required date of such prepayment (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in such prepayment or purchase after the end of the fiscal year of year, together with such prepayment)prepayment described in clause (2) below, the “After Year-End Payment”) and (2) any all voluntary prepayments of Group Revolving Credit Loans during such fiscal year and after the Reovlving Facility solely end of such fiscal year but prior to the required date of such prepayment to the extent the Group Revolving Credit Commitments are permanently reduced by the amount of such prepayment is accompanied by a permanent reduction payments, in the case of each of the Reovlving Commitments, in each case for the immediately preceding clauses (1) and (2) solely ), to the extent such prepayments are not funded with the proceeds of Indebtedness (other than, with respect to clause (1) only, any Indebtedness incurred pursuant to any Revolving Credit Loan or repurchases are financed with Internally Generated Cash. Borrower Swing Line Loan) or any Specified Equity Contribution; provided that (a) the ECF Percentage shall deliver be 25% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to Administrative Agent a 3.25:1.00 and greater than 2.75:1.00 and (b) the ECF Percentage shall be 0% if the Consolidated First Lien Net Leverage Ratio for the fiscal year covered by such financial statements was less than or equal to 2.75:1.00; provided, further, that solely for the purpose of this Section 2.05(b)(i), following the making of each After Year-End Payment, (i) the Consolidated First Lien Net Leverage Ratio shall be re-calculated giving Pro Forma Effect to such After Year-End Payment as if such payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory were made during the fiscal year in respect of which the prepayment pursuant to this Section 3.3(b2.05(b)(i) is made and (ii) such After Year-End Payment taken into account in the calculation of the required prepayment amount above for one fiscal year shall be disregarded for any subsequent calculations for future fiscal years. Notwithstanding anything set forth above, if for any fiscal year the amount calculated pursuant to clause (A) above is less than the amount calculated pursuant to clause (B) above (such amount, the “Excess Prepayments”), the cumulative amount of such Excess Prepayments shall be carried over in calculations for the following fiscal years on a dollar-for-dollar basis.
(ii) (A) Subject to Section 2.05(b)(ii)(B), if (1) any Covenant Entity Disposes of any property or assets pursuant to Section 7.05(h), (i), (l), (n) (other than a Permitted Sale Leaseback between Nexstar Guarantors that are not the Holding Companies), (o)(y), (u) (in each case of (o)(y) and (u), to the extent provided thereunder) or (w) (in the case of (w), only after the applicable Asset Sale Bridge Facility has been paid in full whether pursuant to a mandatory prepayment described in Section 2.05(b)(ii)(C) or otherwise) or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(D), of an aggregate principal amount of Term Loans (other than Term A-8 Loans) equal to the percentage represented by the quotient of (x) the Outstanding Amount of Term Loans (other than Term A-8 Loans) at such time divided by (y) the sum of the Outstanding Amount of the Term Loans (other than Term A-8 Loans) at such time and the amount of any other Indebtedness constituting term loans or term notes outstanding at such time that is secured by a Lien ranking pari passu with the Liens securing the Term Loans and requiring a like prepayment from such Net Cash Proceeds (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent shall promptly notify each Lender of such noticeits intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing).
Appears in 1 contract
Mandatory Prepayment. (i) If at any time Prepayment of the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds Loan shall be mandatory, and the Revolving Credit Limit, Borrower Company shall immediately prepay the outstanding Revolving Loans by reduce the amount of the excess plus all Loan, in the event that, and in the amount by which:
(a) the aggregate amount of insurance proceeds received by the Company for or in respect of its properties or assets during any Fiscal Year, which are not applied or committed within 180 days after the receipt thereof to the repair or replacement of such properties or assets, exceeds $2,000,000; and
(b) the amount by which (x) the sum of (i) Restricted Payments made in any Fiscal Year and (ii) any other payment to the Sponsor or any Affiliate of the Sponsor referred to in Section 7.06(b) made in such Fiscal Year exceeds (y)
(A) seventy percent (70%) of the Company's Net Income for the preceding Fiscal Year, as reflected in the Company's audited Financial Statements or (B) if audited Financial Statements for such preceding Fiscal Year have not yet been delivered to OPIC but at least 90 days have passed from the end of such preceding Fiscal Year, thirty-five percent (35%) of the Company's Net Income for such preceding Fiscal Year, as shown in the Company's unaudited Financial Statements for such preceding Fiscal Year, as certified to OPIC by an Authorized Officer of the Company before such Restricted Payment is made. No Restricted Payments referred to in clause (B) of the foregoing sentence may be made unless arrangements satisfactory to OPIC shall have been made with respect to any part of such Restricted Payments that prove to have exceeded seventy percent (70%) of the Company's Net Income for the preceding Fiscal Year, as shown in the Company's audited Financial Statements for the repayment of such part to the Company or for the prepayment by the Company of a principal amount of the Loan equal to the amount of such part. The Company shall (i) within 10 Business Days after the occurrence of any event requiring funds to be applied to a prepayment pursuant to this Section, give notice to OPIC describing such event and specifying the principal amount of such prepayment and the Business Day (specified in accordance with the requirements of the applicable Funding Documents) on which such prepayment shall be made and (ii) on the Business Day so specified, make the prepayment required by this Section, together with accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Prepayment Premium (if any)); provided that, if within 20 days after ) on the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes principal amount prepaid. Amounts applied to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business prepayment of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(bshall be allocated among the outstanding Disbursements in accordance with the Funding Documents and shall be applied to the repayment schedule provided for in Section 2.07 in inverse order of maturity. For purposes of determining whether any Prepayment Premium is due, the Loan prepayment resulting from this Section 2.08 shall have the same effect as if such prepayment occurred pursuant to Section 2.07, except that solely with respect to Section 2.08(a) and Administrative Agent no Prepayment Premium shall promptly notify each Lender of such noticebe due.
Appears in 1 contract
Mandatory Prepayment. (a) Subject to Section 2.9.2(c), Borrower and Co-Borrower shall prepay, first, the Term A Loans until Paid in Full, second, the Term B Loans until Paid in Full (in each case in the inverse order of maturity to the remaining installments thereof), and third, the Revolving Loans until Paid in Full, at the following times and in the following amounts, in each case except as otherwise expressly provided in this Agreement:
(i) If at concurrently with receipt by any time the Revolving Credit Exposure (for Loan Party of any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit LimitNet Cash Proceeds from any Disposition, Borrower shall immediately prepay the outstanding Revolving Loans by the in an amount of the excess plus all accrued and unpaid interest on the amount so prepaid.equal to such Net Cash Proceeds;
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received concurrently with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Cash Proceeds from any issuance of its equity securities (other than equity securities that are issued pursuant to Section 7.11(a)) or the issuance of Debt issued by a Loan Party (excluding any other than Debt permitted by Section 7.1, in an amount equal to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any)such Net Cash Proceeds;
(Eiii) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) 90 days after the date end of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds each Fiscal Year (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day periodcommencing with Fiscal Year 2017), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow ECF Percentage multiplied by of Excess Cash Flow for such fiscal year then ended minus Fiscal Year; and
(iv) concurrently with the receipt by any Loan Party of any Extraordinary Receipts, in an amount equal to such Extraordinary Receipts.
(b) If on any day the sum of (1i) voluntary prepayments the Revolving Loans then outstanding plus (ii) the Stated Amount of the Term Loans made during such period (other than voluntary prepayments applied outstanding Letters of Credit exceeds the Revolving Loan Commitment, whether pursuant to prepay future amortization payments that would be due a reduction of the Revolving Loan Commitment pursuant to Section 3.2(a)(ii2.8.1 or otherwise, Borrower and Co-Borrower shall immediately prepay Revolving Loans in an amount sufficient to eliminate such excess.
(c) Notwithstanding Section 2.9.2(a), on each Monday during the term of the Revolving Loan Commitment and for so long as there are Revolving Loans outstanding, Borrower and Co-Borrower shall prepay the Revolving Loans until Paid in Full in an amount equal to the fiscal year Excess Cash at the time of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cashpayment. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment Payments pursuant to this Section 3.3(b2.9.2(c) and Administrative Agent shall promptly notify each Lender of such noticenot result in a reduction in the Revolving Loan Commitment.
Appears in 1 contract
Sources: Credit Agreement (5.11 Abr Corp.)
Mandatory Prepayment. (i) If, during the period commencing on the date hereof and ending on June 30, 2016, the Investor places a bona fide purchase order with the Company for the purchase by Purchaser of 300 units of the MedCenter (as defined in the Amended POC Agreement) in accordance with Section 3.1(c)(ii) of the Amended POC Agreement (such order being the "Qualifying Order") and delivers the requisite deposit for such order, in each case pursuant to the terms of the Amended POC Agreement (collectively, the "First Milestone"), then, for a period of not more than thirty (30) days following the achievement of the First Milestone, the Investor may deliver to the Company written demand for the prepayment of up to $5,000,000 of the then outstanding principal amount of this Note plus interest accrued and unpaid thereon. The Company shall make such prepayment no more than ten (10) days following the Company's receipt of the Investor's properly delivered written notice therefor.
(ii) If at the First Milestone is achieved, then, upon the completed installation of the 150th MedCenter unit ordered by the Investor pursuant to the Qualifying Order, the Investor may, within thirty (30) days following such installation, deliver to the Company written demand for the prepayment of up to $5,000,000 of the then outstanding principal amount of this Note plus interest accrued thereon. For the avoidance of doubt, any time prepayments in connection with the Revolving Credit Exposure terms of this Section 1(c)(ii): (X) shall be in addition to any prepayments pursuant to Section 1(c)(i) and (Y) shall be payable regardless of whether the Investor has made any previous demand for any Revolving Lender or for all Revolving Lendersprepayment pursuant to Section 1(c)(i). The Company shall make such prepayment no more than ten (10) exceeds days following the Revolving Credit LimitCompany's receipt of the Investor's properly delivered written notice therefor.
(iii) In the event of a Change of Control, Borrower shall immediately prepay the outstanding Revolving Loans by the principal amount of the excess this Note, plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received byinterest, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are has not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred been converted into equity securities pursuant to Section 9.1)4, plus shall be due and payable upon the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date closing of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor Change of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeControl.
Appears in 1 contract
Sources: Subordinated Secured Convertible Promissory Note (Myos Rens Technology Inc.)
Mandatory Prepayment. The outstanding Obligations shall be subject to prepayment as follows:
(a) If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any Collateral (other than the sale of Collateral (other than Real Estate, Capital Stock and Intellectual Property) in the ordinary course of business and the transfer of any Collateral among Stores and other locations of the Loan Parties), to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, provided that no Event of Default has occurred and is continuing, (i) If the proceeds therefrom are (a) utilized for purposes of replacing or repairing the assets in respect of which such proceeds were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds (or, in the case of any disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate, within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds) or (b) in the case of any disposition of Real Estate listed on Schedule 1.1(b), reinvested in additional Real Estate within twelve (12) months of the receipt of such proceeds or within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds and (ii) the aggregate amount at any time of such reinvested proceeds (A) in the Revolving Credit Exposure case of any such sale, transfer or other disposition of any such Collateral pursuant to a sale and leaseback transaction, is equal to or less than $5,000,000 and (B) in the case of any such sale, transfer or other disposition of such Collateral (other than pursuant to a sale and leaseback transaction and other than a disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate) is equal to or less than $10,000,000; or
(b) If on any date any Loan Party shall have received Net Proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party, to the extent that such Net Proceeds are not required to be applied to the payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds;
(c) If on any date any Loan Party shall have received Net Proceeds from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness (other than Permitted Indebtedness as described in clause (l)(ii) or clause (v) of the definition of Permitted Indebtedness)), an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f); and
(d) If, for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount Fiscal Year of the excess plus all accrued and unpaid interest Borrower commencing with the Fiscal Year ending May 31, 2007, there shall be Excess Cash Flow, the Borrower shall, on the amount so prepaidrelevant Excess Cash Flow Application Date (as defined below), apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in SECTION 2.17(f). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the date on which financial statements of the Borrower have been delivered pursuant to SECTION 5.01(a).
(iie) Reserved.
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d) above shall be applied first to the remaining scheduled Installments of principal due within 24 months of such prepayment and thereafter to the remaining scheduled Installments of principal on a pro rata basis. Subject to the foregoing, outstanding Prime Rate Loans shall be prepaid before outstanding LIBO Loans are prepaid. No later prepayment of LIBO Loans shall be permitted pursuant to this SECTION 2.17 other than on the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within five (5) Business Days following of receiving a written demand for such reimbursement which sets forth the earlier calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the date such amounts are received by, or for the account ofBorrower, the Borrower (or Administrative Agent shall hold all amounts required to be applied to LIBO Loans in a Cash Collateral Account and will apply such funds to the applicable Loan Party) on or after the date hereof and LIBO Loans at the end of any election periods set forth below, the following amounts then pending Interest Period therefor (provided that the foregoing shall be paid to Administrative Agent for in no way limit or restrict the ratable benefit of Agents’ rights upon the Lenders in occurrence and during the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% continuance of any cash Net Proceeds in excess other Event of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if anyDefault)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.
Appears in 1 contract
Sources: Credit Agreement (COHOES FASHIONS of CRANSTON, Inc.)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds Growth Capital Loans are accelerated following the Revolving Credit Limitoccurrence and during the continuance of an Event of Default, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid pay to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in Lender an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1i) voluntary prepayments all outstanding principal and accrued but unpaid interest, plus (ii) all other sums, including Lender Expenses (including, without limitation, reasonable attorneys’ fees and all other costs of collection), if any, that shall have become due and payable. Interest: Growth Capital Loans accrue interest on the outstanding principal balance at a fixed rate per annum of twelve percentage points (12%), to be compounded monthly if delinquent. Interest is computed on a 360 day year for the actual number of days elapsed. Any amounts outstanding during the continuance of an Event of Default shall bear additional interest at the rate of 5% per annum, to be compounded monthly if delinquent. Application of Payments: Payments received after 12:00 noon East Coast time are considered received at the opening of business on the next Business Day. When a payment is due on a day that is not a Business Day, the payment is due the next Business Day and additional interest shall accrue. Right to Invest: Borrower hereby grants to Lender a one-time right (but not an obligation) (the “Right to Invest”) to purchase the number of shares of Preferred Stock proposed to be offered by the Company in its next Preferred Stock financing of at least $1,000,000 (a “Qualified Financing”) equal to 25% of the Term Loans made during number of shares of Preferred Stock proposed to be sold in such period Qualified Financing (other than voluntary prepayments applied excluding any shares issued to prepay future amortization payments that would be due Lender pursuant to Section 3.2(a)(iithis Right to Invest), on the terms and conditions (including but not limited to the price per share paid by the purchasers of a majority of the shares sold for cash in such Qualified Financing) described in the fiscal year documentation for such Qualified Financing, which such purchase may be completed at a subsequent closing of the Qualified Financing. Borrower shall give Lender notice of the Qualified Financing (the “Financing Notice”) no later than ten (10) days following the closing of the first sale of Preferred Stock sold in the Qualified Financing which notice shall (a) identify the investors participating in such prepaymentprivate equity financing and contain the terms, conditions and pricing of the private equity financing, and (b) be delivered to Lender’s address set forth herein. This right shall terminate on the date (the “Right to Invest Termination Date”) that is the earliest to occur of (a) twenty (20) days following the date the Financing Notice is delivered, and (b) ninety (90) days following the date on which all Growth Capital Loans are repaid in full. This Right to Invest shall not be applicable if (i) at the time of the Qualified Financing, (A) Lender is not an “accredited investor,” as that term is then defined in Rule 501(a) under the Securities Act, and (B) such issuance of Preferred Stock is otherwise being offered only to accredited investors, or if (ii) Lender is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act of 1933, as amended. Lender agrees that its purchase of shares pursuant to this Right to Invest is contingent upon Lender’s execution and delivery to Borrower of all transaction documents related to the Qualified Financing, including a purchase agreement and other ancillary agreements, with customary representations and warranties and transfer restrictions (including a lock-up agreement in connection with an initial public offering), and (2) any voluntary prepayments failure to execute and deliver the transaction documents and deliver the purchase price for any such shares of the Reovlving Facility solely Preferred Stock prior to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely Right to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower Invest Termination Date shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.constitute an
Appears in 1 contract
Sources: Loan and Security Agreement
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Partiesdefinition of “Permitted Dispositions”, then to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelve (12) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall have received Net Proceeds (i) from any Refinancing Term Loans or Indebtedness pursuant to clause (v)(i) of the definition of “Permitted Indebtedness” or (ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), an amount equal to 100% of such Net Proceeds shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(Eapplied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f);.
(Fd) Within If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to SECTION 2.16 during such Fiscal Year toward the prepayment of the Term Loans as set forth in SECTION 2.17(f) and the amount expended by the Borrower pursuant to SECTIONS 2.16(d) and 9.04(g) during such Fiscal Year. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the date on which the compliance certificate of the Borrower has been delivered pursuant to SECTION 5.01(d).
(e) [Reserved].
(f) Any prepayment of any Term Loans pursuant to SECTIONS 2.17(a) through (d) above shall be applied to repay Term Loans of each then outstanding Class, provided, that (i) any prepayment of any Term Loans pursuant to SECTION 2.17(c) shall be applied to repay Term Loans of only those Class(es) selected by the Borrower. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied as directed by the Borrower, (ii) to the extent any Qualifying Secured Debt that is secured on a pari passu basis with the Obligations requires a prepayment from Excess Cash Flow, the amount of the prepayment of the Term Loans required above shall be reduced in proportion of the ratio of the aggregate principal amount of the Term Loans then outstanding to the aggregate amount of the Term Loans and such Qualifying Secured Debt then outstanding and (iii) any Lender may elect to decline its share of any prepayment pursuant to clause (a), (b) or (d) above by giving notice to the Administrative Agent within one Business Day following the date the Borrower gives notice of such prepayment (any amount declined by a Lender pursuant to this subclause (iii) a “Declined Amount”). Subject to the foregoing, outstanding Prime Rate Loans of any Class shall be prepaid before outstanding LIBO Loans of such Class are prepaid. No prepayment of LIBO Loans of any Class shall be permitted pursuant to this SECTION 2.17 until the last day of an Interest Period applicable thereto, unless the Borrower reimburses the Lenders for all Breakage Costs associated therewith within fifteen (15) Business Days of receiving a written demand for such reimbursement which Borrower are sets forth the calculation of such Breakage Costs in reasonable detail. In order to avoid such Breakage Costs, as long as no Specified Default has occurred and is continuing, at the request of the Borrower, the Administrative Agent shall hold all amounts required to deliver their Compliance Certificate be applied to LIBO Loans of a particular Class in a Cash Collateral Account and financial statements for will apply such funds to the applicable fiscal year pursuant to Sections 8.1(aLIBO Loans of such Class at the end of the then pending Interest Period therefor (provided that the foregoing shall in no way limit or restrict the Agents’ rights upon the occurrence and during the continuance of any other Event of Default).
(g) and (d)), commencing with the fiscal year ending January 2, 2022, The Borrower shall prepay all Non-Converted Term B-4 Loans on the Term Loans in Amendment No. 6 Effective Date.
(h) Notwithstanding any other provisions of this SECTION 2.17, (A) to the extent that any or all of the Excess Cash Flow of a Foreign Subsidiary is prohibited or delayed by any requirement of law from being repatriated to the Loan Parties, an amount equal to the applicable portion of Excess Cash Flow Percentage multiplied so affected will not be required to be applied to repay Term Loans at the times provided in clause (d) above, as the case may be, but only so long, as the applicable requirement of law will not permit repatriation to the Loan Parties (the Loan Parties hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable requirement of law to permit repatriation), and once a repatriation of any of such affected Excess Cash Flow for is permitted under the applicable requirement of law, an amount equal to such fiscal year then ended minus Excess Cash Flow will be promptly (and in any event not later than ten Business Days after such repatriation is permitted) applied (net of any taxes that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) to the sum of (1) voluntary prepayments repayment of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment)Loans, and (2B) any voluntary prepayments of the Reovlving Facility solely to the extent that the Borrower has determined in good faith that repatriation of any of or all the Excess Cash Flow of a Foreign Subsidiary could have an adverse tax consequence with respect to such prepayment is accompanied by a permanent reduction of the Reovlving CommitmentsExcess Cash Flow, in each case for the preceding clauses (1) and (2) solely an amount equal to the extent such prepayments or repurchases are financed with Internally Generated CashExcess Cash Flow so affected may be retained by the applicable Foreign Subsidiary. Borrower For the avoidance of doubt, nothing in this Agreement, including SECTION 2.17 shall deliver be construed to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior require any Foreign Subsidiary to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticerepatriate cash.
Appears in 1 contract
Mandatory Prepayment. (ia) If at In the event that an Unencumbered Asset Pool Property (or any time Separate Parcel that originally formed a part of an Unencumbered Asset Pool Property) is sold, transferred or released from the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount restrictions of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofSection 5.11 hereof, the Borrower (shall, simultaneously with such sale, transfer or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth belowrelease, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments 100% of the Term Loans made during net proceeds of such period (other than voluntary prepayments sale or transfer, in the event of a sale or transfer, or such lesser amount as shall be required for the Borrower to remain in compliance with this Agreement, in the event of such a sale, transfer or release. Notwithstanding the foregoing, a simultaneous like-kind exchange under Section 1031 of the Internal Revenue Code will not be subject to the provisions of this Section 2.10(a), provided that the exchanged property has qualified as a New Acquisition and any cash "boot" associated therewith shall be applied to prepay future amortization payments prepayment of the Loans or such lesser amount of such cash "boot" as shall be required for the Borrower to remain in compliance with this Agreement. Sale of an Unencumbered Asset Pool Property (or any Separate Parcel that would be due pursuant to Section 3.2(a)(iioriginally formed a part of a Unencumbered Asset Pool Property) in violation of this Section 2.10 shall constitute an Event of Default.
(b) Simultaneously with the fiscal year closing of any sale of common shares of beneficial interest, preferred shares of beneficial interest, partnership interests, limited liability company interests, or other ownership or equity interests in the Borrower or the General Partner, the Borrower shall, simultaneously with such sale, prepay the Loans in an amount equal to 100% of the Net Offering Proceeds. Notwithstanding the foregoing, however, in the event that (i) the Net Offering Proceeds in connection with any individual offering shall be less than $20,000,000, and the Borrower anticipates reinvesting the same in Real Property Assets within fifteen (15) days after receipt thereof or (ii) any Loans expire within thirty (30) days of the date thereof, the Borrower may retain such funds, provided, however, that if the Borrower shall not in fact so reinvest such funds in Real Property Assets within such fifteen (15) day period or repay such Loans within such thirty (30) day period, as the case may be, the Borrower shall immediately apply the same in repayment of the Loans.
(c) In the event that the Unsecured Debt Ratio is not maintained as of the last day of a calendar quarter, either (i) the Borrower will add a Real Property Asset to the Unencumbered Asset Pool Properties in accordance with this Agreement which, on a pro forma basis (i.e. the Unsecured Debt Ratio shall be --------- --- recalculated to include such Real Property Asset as though the same had been an Unencumbered Asset Pool Property for the entire applicable period) would result in compliance with the Unsecured Debt Ratio, or (ii) the Borrower shall prepay to the Administrative Agent, for the account of the Banks, an amount necessary to cause the Unsecured Debt Ratio to be in compliance within ninety (90) days of the date on which the Unsecured Debt Ratio failed to be maintained. Failure by the Borrower to comply with the Unsecured Debt Ratio within ninety (90) days of the date of such prepayment), and non-compliance shall be an Event of Default.
(2d) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment Any amounts so prepaid pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice2.10 may not be reborrowed.
Appears in 1 contract
Mandatory Prepayment. The outstanding Term Loans shall be subject to prepayment as follows:
(i) If at Group or any time the Revolving Credit Exposure (for of its Subsidiaries receives any Revolving Lender Net Cash Proceeds from any Asset Sale described in Section 7.4(b) or for all Revolving LendersSection 7.4(j) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofany Property Loss Event, the Borrower (or the applicable Loan PartyBorrowers shall apply an amount equal to 100% of such Net Cash Proceeds in accordance with Section 2.9(d) on or after prior to the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
which is ten (A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (510) Business Days after the date by of the realization or receipt of such Net Cash Proceeds; provided that no such prepayment shall be required pursuant to this Section 2.9(a) with respect to such Net Cash Proceeds (w) that Group or any Subsidiary shall reinvest in accordance with Section 2.9(a)(ii), (x) that constitute Net Cash Proceeds attributable to ABL Priority Collateral, (y) to the extent the aggregate amount of such Net Cash Proceeds received during any Fiscal Year is less than $10,000,000 or (z) that are attributable to any Foreign Subsidiary to the extent the Borrowers have determined in good faith that the repatriation of such Net Cash Proceeds would result in adverse tax consequences to Group or any of its Subsidiaries; and
(ii) With respect to any Net Cash Proceeds realized or received with respect to any Asset Sale or Property Loss Event which Borrower are required to deliver their Compliance Certificate and financial statements be applied for repayments pursuant to Section 2.9(a)(i), at the option of the Borrowers, the Borrowers or any Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets useful in the Borrowers’ or a Subsidiary’s business (including, without limitation, for the consummation of a Permitted Acquisition) within (x) 12 months following receipt of such Net Cash Proceeds or (y) if the Borrowers or a Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within 12 months following receipt thereof, within six months following the last day of such twelve month period; provided that any such Net Cash Proceeds that are not so reinvested within the applicable fiscal year pursuant time period set forth above shall be applied as set forth in Section 2.9(a)(i) (without regard to Sections 8.1(aclause (w) and of the proviso thereto) within five Business Days after the end of the applicable time period set forth above.
(db) If on any date Group or any of its Subsidiaries shall have received Net Cash Proceeds from any Refinancing Term Loans, Refinancing Debt or Indebtedness of Group or any of its Subsidiaries that is not permitted under Section 7.1, the Borrowers shall apply an amount equal to 100% of such Net Proceeds within three Business Days after such date toward the prepayment of Term Loans as set forth in Section 2.9(d)); and
(c) If, for any Fiscal Year of the Borrowers commencing with the fiscal year Fiscal Year ending January 2December 29, 20222012, Borrower there shall prepay be Excess Cash Flow, the Borrowers shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage of such Excess Cash Flow minus (ii) the principal amount of Term Loans optionally prepaid pursuant to Section 2.8 during such Fiscal Year toward the prepayment of the Term Loans as set forth in Section 2.9(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than June 30 of such Fiscal Year; provided that to the extent any amount of Excess Cash Flow would otherwise be required to be applied pursuant to this Section 2.9(c) and the Borrower determines in good faith that such amount would not have been required to be applied but for amounts attributable to Foreign Subsidiaries and that the repatriation of funds from such Foreign Subsidiaries in an amount sufficient to fund such portion of such required payment would result in adverse tax consequences to Group or any of its Subsidiaries, then such amount shall not be required to be applied to such prepayment pursuant to this clause (c);
(d) Except to the extent that any Additional Credit Extension Amendment with respect to any Series of Term Loans provides that such Series of Term Loans shall participate on a less than pro rata basis with the Term Loans of any other specified Class and except as provided in clause (e) below, any prepayment of any Term Loans pursuant to Section 2.9(a) through (c) above shall be applied to repay Term Loans of each then outstanding Class on a pro rata basis. Any prepayment of any Class of Term Loans in accordance with the foregoing shall be applied first, to the remaining scheduled installments of principal of such Term Loans pursuant to Section 2.3 that are due within 24 months of such prepayment and thereafter to the remaining scheduled installments of principal of the Term Loans of such Class on a pro rata basis. Subject to the foregoing, outstanding Alternate Base Rate Loans of any Class shall be prepaid before outstanding Eurodollar Loans of such Class are prepaid;
(e) Anything contained herein to the contrary notwithstanding, so long as any Term Loans are outstanding, in the event the Borrowers are required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Term Loans pursuant to clause (a) or (c) of this Section 2.9, not less than five Business Days prior to the date (the “Required Prepayment Date”) on which the Borrowers are required to make such Waivable Mandatory Prepayment, the Borrowers shall notify Administrative Agent of the amount of such prepayment, and Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loan of the amount of such Lender’s pro rata share of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount; provided, however, that no Lender shall have the option to refuse the amount of any Waivable Mandatory Prepayment without the prior written consent of the Borrowers. Each such Lender may exercise such option by giving written notice to the Borrowers and Administrative Agent of its election to do so on or before the third (3rd) Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify the Borrowers and the Administrative Agent of its election to exercise such option on or before the third (3rd) Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option). On the Required Prepayment Date, the Borrowers shall pay to the Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be applied and/or retained (i) in an amount equal to that portion of the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for Waivable Mandatory Prepayment payable to those Lenders that have elected not to exercise such fiscal year then ended minus option, to prepay the sum Term Loans of such Lenders (1) voluntary prepayments which prepayment shall be applied to the scheduled installments of principal of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to in accordance with Section 3.2(a)(ii) in the fiscal year of such prepayment2.9(d)), and (2ii) any voluntary prepayments in an amount equal to that portion of the Reovlving Facility solely Waivable Mandatory Prepayment otherwise payable to those Lenders that have elected to exercise such option (the extent such prepayment is accompanied “Declined Amount”), which Declined Amount shall be retained by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeBorrowers.
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Mandatory Prepayment. (i) If at Promptly upon the incurrence of any time the Revolving Credit Exposure Debt (for any Revolving Lender or for all Revolving Lendersother than capital lease obligations) exceeds the Revolving Credit Limitowed to a Person other than Bank, Borrower shall immediately prepay make a prepayment to Bank in an amount equal to 100% of the outstanding Revolving Loans net cash proceeds received by the amount Loan Parties from the incurrence of the excess plus all accrued and unpaid interest on the amount so prepaidsuch Debt.
(ii) No later Promptly upon the sale, transfer or disposition of any assets or property by any Loan Party (other than five the sale of inventory in the ordinary course of business and the sale or disposal of obsolete, worn out or damaged equipment and inventory), Borrower shall make a prepayment to Bank in an amount equal to 100% of the net cash proceeds received by the Loan Parties from such sale, transfer or disposition; provided however, any net cash proceeds from the sale, transfer or disposition of assets of less than $5,000,000 in the aggregate received during any fiscal year of Borrower may be Reinvested by Borrower or such Subsidiary if the following conditions are satisfied: (5A) Business Days promptly following the earlier receipt of such net cash proceeds, Borrower provides to Bank a reinvestment certificate stating (1) that no Default or Event of Default has occurred and is continuing either as of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement receipt of such proceeds or assignment:
(A) [reserved];
(B) 100% as of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Eventreinvestment certificate, (2) that such proceeds have been received and (3) a description of the planned Reinvestment of such proceeds), (B) the Reinvestment of such proceeds is completed within 120 days and (C) no Default or Event of Default shall have occurred and be continuing at the time of the application of such proceeds to Reinvestment. If any such proceeds have not been Reinvested at the end of the periods provided above, Borrower shall notify Administrative Agent promptly pay such net cash proceeds to Bank to be applied in writing that it wishes accordance with this Section 2(c).
(iii) Promptly upon the issuance of any Equity Interests in Borrower or any of its Subsidiaries, Borrower shall make a prepayment to reinvest such Net Proceeds Bank in an amount equal to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business 50% of the net cash proceeds received by the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds Parties from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);such Equity Interests.
(Eiv) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing Beginning with the fiscal year ending January December 31, 2017 and for each fiscal year thereafter, on or before 45 days after the end of such fiscal year (“ECF Payment Date”), Borrower will calculate the amount of the Excess Cash Flow as of the end of such fiscal year (such amount of Excess Cash Flow referred to herein as the “Original ECF Amount”), and Borrower shall make a prepayment to Bank (an “Excess Cash Flow Payment”) in an amount equal to 25% of the Original ECF Amount; provided, however, that in the event Borrower’s Senior Funded Debt to EBITDA Ratio exceeds 2.375 to 1.00, such prepayment shall be an amount equal to 50% of the Original ECF Amount. Furthermore, upon receipt of the audited financial statements required to be delivered under Section 4(a)(i) for such fiscal year, Borrower will re-calculate the amount of the Excess Cash Flow as of the end of such fiscal year (such amount of Excess Cash Flow referred to herein as the “Adjusted ECF Amount”), and Borrower agrees to each of the following:
A. If the Original ECF Amount exceeds the Adjusted ECF Amount, then on the ECF Payment Date for the next succeeding fiscal year, the Excess Cash Flow Payment due for such next succeeding fiscal year shall be reduced by an amount equal to the lesser of (1) the resulting decrease in the amount of Excess Cash Flow Payment if such payment had been calculated based on the Adjusted ECF Amount or (2) 15% of EBITDA for such fiscal year.
B. If the Adjusted ECF Amount exceeds the Original ECF Amount, 2022then on the ECF Payment Date for the next succeeding fiscal year, Borrower shall prepay the Term Loans make an additional prepayment to Bank in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum lesser of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) resulting increase in the fiscal year of Excess Cash Flow Payment if such prepayment), and payment had been calculated based on the Adjusted ECF Amount or (2) any voluntary prepayments 15% of EBITDA for such fiscal year. All payments made under Section 2(c)(iv) and received by Bank shall be applied in payment of the Reovlving Facility solely Indebtedness in the following order: first, to outstanding principal amount of the Loans under the Term Note (in inverse order of maturities until paid in full); second, to outstanding principal amount of the Loans under the Draw Term Note (in inverse order of maturities until paid in full); third, to Bank’s costs and expenses; fourth, to the extent such prepayment is accompanied by a permanent reduction outstanding principal amount of the Reovlving Commitmentsloans under the Revolving Credit Note until paid in full; fifth, in each case for the preceding clauses (1) and (2) solely to the extent outstanding principal amount of the Loans under the Equipment Note; sixth, to prepay any outstanding Indebtedness, including providing cash collateral any undrawn letters of credit issued hereunder; and seventh, any remaining amount to the Borrower. Any such prepayments reductions in the amount of the Notes as provided in this Section 2(c)(iv) shall be in addition to all scheduled principal payments and optional payments. No prepayment penalty or repurchases are financed premium shall be required with Internally Generated Cash. Borrower shall deliver respect to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each any mandatory prepayment made pursuant to this Section 3.3(b2(c)(iv) or any voluntary prepayment of the outstanding amounts of Notes as provided therein. All payments made under this Section 2(c) (other than under Section 2(c)(iv)) and Administrative Agent received by Bank shall promptly notify each Lender be applied in payment of the Indebtedness in the following order: first, to Bank’s costs and expenses; second, to outstanding principal amount of the Loans under the Term Note (in inverse order of maturities until paid in full); third, to outstanding principal amount of the Loans under the Draw Term Note (in inverse order of maturities until paid in full); fourth, to the outstanding principal amount of the loans under the Revolving Credit Note until paid in full; fifth, to the outstanding principal amount of the Loans under the Equipment Note; sixth, to prepay any outstanding Indebtedness, including providing cash collateral any undrawn letters of credit issued hereunder; and seventh, any remaining amount to the Borrower. Any such noticereductions in the amount of the Notes as provided in this Section 2(c) shall be in addition to all scheduled principal payments and optional payments. No prepayment penalty or premium shall be required with respect to any mandatory prepayment made pursuant to this Section 2(c) or any voluntary prepayment of the outstanding amounts of Notes as provided therein.
Appears in 1 contract
Sources: Credit Agreement (Ashford Inc.)
Mandatory Prepayment. (ia In the event that an Unencumbered Asset Pool Property (or any Separate Parcel that originally formed a part of an Unencumbered Asset Pool Property) If at any time is sold, transferred or released from the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount restrictions of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofSection 5.16 hereof, the Borrower (shall, simultaneously with such sale, transfer or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth belowrelease, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments 100% of the Term Loans made during net proceeds of such period (other than voluntary prepayments sale or transfer, in the event of a sale or transfer, or such lesser amount as shall be required for the Borrower to remain in compliance with this Agreement, in the event of such a sale, transfer or release. Notwithstanding the foregoing, a simultaneous like-kind exchange under Section 1031 of the Internal Revenue Code will not be subject to the provisions of this Section 2.10(a), pro- vided that the exchanged property has qualified as a New Acquisition and any cash "boot" associated therewith shall be applied to prepay future amortization payments prepayment of the Loans or such lesser amount of such cash "boot" as shall be required for the Borrower to remain in compliance with this Agreement. Sale of an Unencumbered Asset Pool Property (or any Separate Parcel that would be due pursuant to Section 3.2(a)(iioriginally formed a part of a Unencumbered Asset Pool Property) in violation of this Section 2.10 shall constitute an Event of Default.
(b Simultaneously with the fiscal year closing of any sale of common shares of beneficial interest, preferred shares of beneficial interest, partnership interests, limited liability company interests, or other ownership or equity interests in the Borrower or the General Partner, the Borrower shall, simultaneously with such prepayment)sale, prepay the Loans in an amount equal to 100% of the Net Offering Proceeds. Notwithstanding the foregoing, however, in the event that (i) the Net Offering Proceeds in connection with any individual offering shall be less than $20,000,000, and the Borrower anticipates reinvesting the same in Real Property Assets within fifteen (215) days after receipt thereof or (ii) any voluntary prepayments Loans expire within thirty (30) days of the Reovlving Facility solely to date thereof, the extent Borrower may retain such prepayment is accompanied by a permanent reduction funds, provided, however, that if the Borrower shall not in fact so reinvest such funds in Real Property Assets within such fifteen (15) day period or repay such Loans within such thirty (30) day period, as the case may be, the Borrower shall immediately apply the same in repayment of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeLoans.
Appears in 1 contract
Mandatory Prepayment. (a) The Borrower shall prepay the Loans ratably in accordance with the aggregate outstanding principal balances thereof, with the Net Cash Proceeds of: (i) If at any time direct or indirect public offering or private placement of the Revolving Credit Exposure Permanent Securities, or any other debt or equity securities of either of Newco or the Borrower other than (for a) the Equity Financing, (b) any Revolving Lender cash contribution by ▇▇▇▇▇▇▇ or for all Revolving Lenders▇▇▇▇ to the common equity of Newco, (c) exceeds any issuance of directors' qualifying shares and (d) any issuance or sale of common stock (or common stock equivalents) of Newco to officers and employees under employee benefit or compensation plans, (ii) the Revolving Credit Limitincurrence of any other Indebtedness by any of Newco or the Borrower (other than Indebtedness permitted to be incurred under Section 4.6) and (iii) any Asset Sale by any of Newco or the Borrower (each of the transactions in the foregoing clauses (i), (ii) and (iii), a "Capital Markets Transaction"). Newco or the Borrower shall immediately shall, not later than the fourth Business Day following the receipt of the Net Cash Proceeds of any Capital Markets Transaction, prepay the outstanding Revolving Loans pursuant to this Section 2.5, without premium or penalty, by paying to each Lender an amount equal to 100% of such Lender's pro rata share of the aggregate principal amount of the excess Loans to be prepaid, plus all accrued and unpaid interest thereon to the Prepayment Date. Any amounts to be applied pursuant to Section 2.5(a) to prepay LIBOR Loans shall, at the option of the Borrower, be applied to prepay LIBOR Loans immediately and/or shall be deposited in the Prepayment Account (as defined below). The Paying Agent shall apply any cash deposited in the Prepayment Account to prepay LIBOR Loans on the amount so prepaid.
last day of their Interest Period (ii) No later than five (5) Business Days following or, at the earlier direction of the date Borrower, on any earlier date) until all outstanding Loans have been prepaid or until all the cash on deposit with respect to such amounts are received by, or for the account ofLoans has been exhausted. For purposes of this Agreement, the term Prepayment Account" shall mean an account established by the Borrower with the Paying Agent and over which the Paying Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this paragraph. The Paying Agent will, at the request of the Borrower, invest amounts on deposit in the Prepayment Account in Permitted Investments of the kind specified in clauses (or a), (b) and (c) of the definition thereof that mature prior to the last day of the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit Interest Period of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed LIBOR Loans to be reinvested within such 365-day periodprepaid; provided, reinvested within 180 days after such 365-day period)however, then that (i) the applicable Loan Party Paying Agent shall not be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further investment that, notwithstanding in its sole judgment, would require or cause the foregoingPaying Agent to be in, Net Proceeds obtained by or would result in, any Loan Party with respect violation of any law, statute, rule or regulation and (ii) the Paying Agent shall have no obligation to reimbursements due invest amounts on deposit in the Prepayment Account if an Event of Default shall have occurred and be continuing. The Borrower shall indemnify the Paying Agent for any losses relating to loss the investments so that the amount available to prepay LIBOR Loans on the last day of cash (whether as a result of theftthe applicable Interest Period is not less than the amount that would have been available had no investments been made pursuant thereto. Other than any interest earned on such investments, natural disaster or otherwise) the Prepayment Account shall not bear interest. Interest or profits, if any, on such investments shall be subject deposited in the Prepayment Account and reinvested and disbursed as specified above. If the maturity of the Loans has been accelerated pursuant to Article VII, the Paying Agent may, in its sole discretion, apply all amounts on deposit in the Prepayment Account to satisfy any of the Obligations. The Borrower hereby grants to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity ContributionPaying Agent, plus for its benefit and the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% benefit of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b)Lenders, Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of Prepayment Account to secure the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments of the Term Loans made during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeBorrower's obligations hereunder.
Appears in 1 contract
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess Collateral (other than the sale of $2,000,000 individually or Collateral (other than Real Estate, Capital Stock and Intellectual Property) in the aggregate over ordinary course of business and the term of this Agreement in respect transfer of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent among Stores and that are useful in the business other locations of the Loan Parties), then to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds (or if so committed to shall be reinvested applied within such 365-day period, reinvested within 180 days five Business Days after such 365-day period)date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless, then provided that no Event of Default has occurred and is continuing, (i) the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding proceeds therefrom are (a) utilized for purposes of replacing or repairing the foregoing, Net Proceeds obtained by any Loan Party with assets in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster which such proceeds were received or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any reinvesting in assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 used in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties’ business within twelve (12) months of the receipt of such proceeds (or, then in the Borrower shall case of any disposition of Real Estate the proceeds of which will be permitted used to defer reinvest in Real Estate, within eighteen (18) months of receipt of such prepayment for proceeds if a period letter of up intent or other binding commitment to 365 days after reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds) or (b) in the case of any disposition of Real Estate listed on Schedule 1.1(b), reinvested in additional Real Estate within twelve (12) months of the receipt of such proceeds or within eighteen (18) months of receipt of such proceeds if a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds and (ii) the aggregate amount at any time of such reinvested proceeds (A) in the case of any such sale, transfer or other disposition of any such Collateral pursuant to a sale and leaseback transaction, is equal to or less than $10,000,000 and (B) in the case of any such sale, transfer or other disposition of such Collateral (other than pursuant to a sale and leaseback transaction and other than a disposition of Real Estate the proceeds of which will be used to reinvest in Real Estate) is equal to or less than $10,000,000; or
(b) If on any date the applicable any Loan Party receives such shall have received Net Proceeds; provided further Proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party, to the extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within applied within five (5) Business Days after such date toward the date by which Borrower prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal be paid to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for holder of a Lien on such fiscal year then ended minus property or asset having priority over the sum of (1) voluntary prepayments Lien of the Term Loans made during Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing or repairing the assets in respect of which such period proceeds, awards or payments were received or reinvesting in assets used in any of the Loan Parties’ business within twelve (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii12) in months of the fiscal year receipt of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.proceeds;
Appears in 1 contract
Sources: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Mandatory Prepayment. (i) If at any time the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the The outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account of, the Borrower (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts Obligations shall be paid subject to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignmentprepayment as follows:
(Aa) [reserved];
If on any date any Loan Party shall have received Net Proceeds from any sale, transfer or other disposition (Bincluding pursuant to a sale and leaseback transaction) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral permitted pursuant to clause (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business q) of the Loan Partiesdefinition of “Permitted Dispositions”, then to the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further extent that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (a) no Specified Default has occurred and is continuing, (i) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds were received or reinvesting in assets used or useful in any of the Loan Parties’ or Restricted Subsidiaries business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to be reinvested reinvest such proceeds is entered into within twelve (12) months of receipt of such 365-day period, reinvested within 180 days after proceeds) and (b) no such 365-day period), then the applicable Loan Party prepayment shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with in respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus unless and until such amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such amount may be retained by the Applicable Premium (if anyBorrower);.
(Db) 100% of If on any cash date any Loan Party shall have received Net Proceeds from the issuance any casualty or other insured damage to, or any taking under power of Debt issued eminent domain or by condemnation, expropriation or similar proceeding of, any Collateral of a Loan Party (excluding any other Debt permitted Party, to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing extent that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from required to be applied to the applicable Loan Party’s receipt payment of obligations of the Borrower or other borrowers under the ABL Facility, an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the prepayment of Term Loans as set forth in SECTION 2.17(f) unless (i) the proceeds therefrom are required to be paid to the holder of a Lien on such property or asset having priority over the Lien of the Collateral Agent, or (ii) the proceeds therefrom are utilized for purposes of replacing, restoring or repairing the assets in respect of which such proceeds, awards or payments were received or reinvesting in assets used or useful in any of the Loan Parties’ or their Restricted Subsidiaries’ business within twelve (12) months of the receipt of such proceeds (or within eighteen (18) months of receipt of such proceeds if so committed a letter of intent or other binding commitment to reinvest such proceeds is entered into within twelve (12) months of receipt of such proceeds); provided that no such prepayment shall be reinvested within required in respect of any Net Proceeds unless and until such 365-day period, reinvested within 180 days after amount exceeds $10,000,000 in any Fiscal Year (and all amounts under such 365-day periodamount may be retained by the Borrower), then the applicable .
(c) If on any date any Loan Party shall be required to make have received Net Proceeds (i) from any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year Refinancing Term Loans or Indebtedness pursuant to Sections 8.1(aclause (v)(i) and of the definition of “Permitted Indebtedness” or (d)ii) from the incurrence of any Indebtedness of the Borrower or any of its Subsidiaries (other than Permitted Indebtedness), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to 100% of such Net Proceeds shall be applied within five Business Days after such date toward the applicable prepayment of Term Loans as set forth in SECTION 2.17(f).
(d) If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending January 28, 2012, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date (as defined below), apply an amount, if positive, equal to the excess of (i) the ECF Percentage multiplied by of such Excess Cash Flow for minus (ii) the principal amount of Term Loans optionally prepaid pursuant to SECTION 2.16 during such fiscal year then ended minus Fiscal Year toward the sum of (1) voluntary prepayments prepayment of the Term Loans made as set forth in SECTION 2.17(f) and the amount expended by the Borrower pursuant to SECTIONS 2.16(d) and 9.04(g) during such period (other than voluntary prepayments applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii) in the fiscal year of such prepayment), and (2) any voluntary prepayments of the Reovlving Facility solely to the extent Fiscal Year. Each such prepayment is accompanied by shall be made on a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such notice.date
Appears in 1 contract
Mandatory Prepayment. Subject in each case to the terms of the -------------------- Intercreditor Agreement:
(ia) If at any time Citadel Cinemas exercises the Revolving Credit Exposure Purchase Option (for any Revolving Lender or for all Revolving Lenders) exceeds as defined in the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofLease Agreement), the Borrower shall prepay all Obligations in full on the Purchase Option Closing Date (or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth below, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders as defined in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)Lease Agreement); provided that, if within 20 days after the date of such Casualty Event, Borrower Citadel Cinemas shall notify Administrative Agent in writing that it wishes fail or refuse to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Partiesclose, then the Borrower shall have no obligation to prepay as herein set forth; and
(b) If the Borrower shall receive and, pursuant to the terms of the Lease Agreement, be permitted entitled to defer retain any insurance proceeds resulting from damage to any of its Assets (including proceeds of insurance maintained by Citadel Cinemas), or proceeds resulting from any Taking (as defined in the Lease Agreement) or shall receive a payment pursuant to clause (i) of paragraph (c) of Section 19 of the Lease Agreement, the Borrower shall use the full amount of such prepayment sums, after payment of any out- of-pocket expenses incurred by the Borrower in connection therewith, to pay (i) first, any outstanding principal amount of the Nationwide Indebtedness, and (ii) second, any outstanding principal amount of the Indebtedness under this Agreement; provided, however, that, with the prior written approval of Nationwide (which it may elect to grant or withheld in its sole discretion), the Borrower may apply all of such sums to prepay the principal Indebtedness outstanding hereunder until paid in full, in which event all such excess shall be applied in reduction of the principal balance of the Nationwide Indebtedness; provided, further, that, if at the time of the Borrower's receipt of any of the aforesaid sums, there is no amount then outstanding hereunder or less than the full amount has been drawn hereunder, the Borrower shall utilize such sums to prepay other Indebtedness (or distribute such sums to its sole Member for such use) or the Nationwide Indebtedness and, to the extent that such sums are applied in reduction of the principal of such other Indebtedness (or so used by such Member), the Commitment hereunder shall be reduced dollar for dollar.
(c) If the Acquisition Cost (as defined in the Lease Agreement) is reduced by the Acquisition Cost Adjustment (as defined in the Lease Agreement) as a period result of up the termination of the Sub-Management Agreement, then (i) the Commitment shall be reduced by an amount equal to 365 the lesser of the Acquisition Cost Adjustment and the unused Commitment and (ii) if the amount of the reduction under Section 2.6(c)(i) is less than the Acquisition Cost Adjustment, then (A) the Borrower, within 30 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements adjustment for the applicable fiscal year pursuant to Sections 8.1(a) and (d))Acquisition Cost Adjustment is made under the Lease Agreement, commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in pay an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments excess of the Term Loans made during such period (other than voluntary prepayments Acquisition Cost Adjustment over the amount of the reduction in the Commitment under Section 2.6(c)(i) to be applied to prepay future amortization payments that would be due pursuant to Section 3.2(a)(ii(I) in first, any outstanding principal amount of the fiscal year of such prepayment)Nationwide Indebtedness, and (2II) second, any voluntary prepayments outstanding principal amount of the Reovlving Facility solely Indebtedness under this Agreement; provided, however, that, with the prior written approval of Nationwide (which it may elect to grant or withheld in its sole discretion), the extent Borrower may apply all of such prepayment is accompanied by a permanent sums to prepay the principal Indebtedness outstanding hereunder until paid in full, in which event all such excess shall be applied in reduction of the Reovlving Commitmentsprincipal balance of the Nationwide Indebtedness, in each case for the preceding clauses (1) and (2B) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower Commitment shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender be reduced by the amount of such noticeLoans as so prepaid.
Appears in 1 contract
Mandatory Prepayment. (ia) If at In the event that an Unencumbered Asset Pool Property (or any time Separate Parcel that originally formed a part of an Unencumbered Asset Pool Property) is sold, transferred or released from the Revolving Credit Exposure (for any Revolving Lender or for all Revolving Lenders) exceeds the Revolving Credit Limit, Borrower shall immediately prepay the outstanding Revolving Loans by the amount restrictions of the excess plus all accrued and unpaid interest on the amount so prepaid.
(ii) No later than five (5) Business Days following the earlier of the date such amounts are received by, or for the account ofSection 5.16 hereof, the Borrower (shall, simultaneously with such sale, transfer or the applicable Loan Party) on or after the date hereof and the end of any election periods set forth belowrelease, the following amounts shall be paid to Administrative Agent for the ratable benefit of the Lenders in the form received with any necessary endorsement or assignment:
(A) [reserved];
(B) 100% of any cash Net Proceeds in excess of $2,000,000 individually or in the aggregate over the term of this Agreement in respect of any Casualty Event affecting Collateral (plus the Applicable Premium (if any)); provided that, if within 20 days after the date of such Casualty Event, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds to replace the damaged assets in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(B); provided further that, notwithstanding the foregoing, Net Proceeds obtained by any Loan Party with respect to reimbursements due to loss of cash (whether as a result of theft, natural disaster or otherwise) shall not be subject to the mandatory prepayment provisions of this Section 3.3(b)(ii)(B);
(C) 100% of any Net Proceeds of a Specified Equity Contribution, plus the Applicable Premium (if any);
(D) 100% of any cash Net Proceeds from the issuance of Debt issued by a Loan Party (excluding any other Debt permitted to be incurred pursuant to Section 9.1), plus the Applicable Premium (if any);
(E) 100% of the cash Net Proceeds from the Disposition of any assets pursuant to Section 9.4(b), Section 9.4(e) Section 9.4(g)(w), Section 9.4(o), Section 9.4(p), Section 9.4(q) or Section 9.4(r) individually or in the aggregate in excess of $2,000,000 in any fiscal year (plus the Applicable Premium (if any)); provided that, if within forty-five (45) days after the date of such Disposition, Borrower shall notify Administrative Agent in writing that it wishes to reinvest such Net Proceeds in assets that are subject to a security interest in favor of Collateral Agent and that are useful in the business of the Loan Parties, then the Borrower shall be permitted to defer such prepayment for a period of up to 365 days after the date the applicable Loan Party receives such Net Proceeds; provided further that if such Net Proceeds are not reinvested within 365 days from the applicable Loan Party’s receipt of such Net Proceeds (or if so committed to be reinvested within such 365-day period, reinvested within 180 days after such 365-day period), then the applicable Loan Party shall be required to make any prepayments otherwise required by this Section 3.3(b)(ii)(E);
(F) Within five (5) Business Days after the date by which Borrower are required to deliver their Compliance Certificate and financial statements for the applicable fiscal year pursuant to Sections 8.1(a) and (d)), commencing with the fiscal year ending January 2, 2022, Borrower shall prepay the Term Loans in an amount equal to the applicable Excess Cash Flow Percentage multiplied by Excess Cash Flow for such fiscal year then ended minus the sum of (1) voluntary prepayments 100% of the Term Loans made during net proceeds of such period (other than voluntary prepayments sale or transfer, in the event of a sale or transfer, or such lesser amount as shall be required for the Borrower to remain in compliance with this Agreement, in the event of such a sale, transfer or release. Notwithstanding the foregoing, a simultaneous like-kind exchange under Section 1031 of the Internal Revenue Code will not be subject to the provisions of this Section 2.10(a), provided that the exchanged property has qualified as a New Acquisition and any cash "boot" associated therewith shall be applied to prepayment of the Loans. Sale of an Unencumbered Asset Pool Property (or any Separate Parcel that originally formed a part of a Unencumbered Asset Pool Property) in violation of this Section 2.10 shall constitute an Event of Default.
(b) Simultaneously with the closing of any sale of common shares of beneficial interest, preferred shares of beneficial interest, partnership interests, limited liability company interests, or other ownership or equity interests in the Borrower or the General Partner, the Borrower shall, simultaneously with such sale, prepay future amortization payments that would be due pursuant the Loans in an amount equal to Section 3.2(a)(ii100% of the Net Offering Proceeds.
(c) in the fiscal year event that the Unsecured Debt Ratio is not maintained as of the last day of a calendar quarter, either (i) the Borrower will add a Real Property Asset to the Unencumbered Asset Pool Properties in accordance with this Agreement which, on a pro forma basis (i.e. the Unsecured Debt Ratio shall be --------- --- recalculated to include such Real Property Asset as though the same had been an Unencumbered Asset Pool Property for the entire applicable period) would result in compliance with the Unsecured Debt Ratio, or (ii) the Borrower shall prepay to the Lead Agent, for the account of the Banks, an amount necessary to cause the Unsecured Debt Ratio to be in compliance within ninety (90) days of the date on which the Unsecured Debt Ratio failed to be maintained. Failure by the Borrower to comply with the Unsecured Debt Ratio within ninety (90) days of the date of such prepayment), and (2) any voluntary prepayments non-compliance shall be an Event of the Reovlving Facility solely to the extent such prepayment is accompanied by a permanent reduction of the Reovlving Commitments, in each case for the preceding clauses (1) and (2) solely to the extent such prepayments or repurchases are financed with Internally Generated Cash. Borrower shall deliver to Administrative Agent a payment notification not later than 11:00 a.m. New York City time at least two (2) Business Days prior to each mandatory prepayment pursuant to this Section 3.3(b) and Administrative Agent shall promptly notify each Lender of such noticeDefault.
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