Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 2 contracts

Sources: Credit Agreement (Clarivate Analytics PLC), Credit Agreement (Clarivate Analytics PLC)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i)~~ reason the ~~ECF Percentage for such period~~ Total Revolving Extensions of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans Credit at any time ~~exceeds (the “Revolving Excess”)~~ exceed the Total Revolving Commitments then in effect, the ~~Revolving Borrowers~~ Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in an amount not less than the applicable Minimum Collateral Amount multiplied by such excess amount; provided, however, that, subject to Section 2.24(a), the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.9(a) unless after the prepayment in full of the Revolving Loans, Total Revolving Extensions of Credit exceed the Total Revolving Commitments then in effect. (orb) If on any date a Trigger Event or an Event of Default has occurred and is continuing, ~~if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and~~ the Borrower shall prepay Revolving Loans and Cash Collateralize ~~Letters of Credit to~~ the ~~extent necessary to remove such~~ L/C Obligations as set forth in Section 2.25(b). If on any date a Partial Trigger Event has occurred and is continuing, the Borrower shall prepay Revolving ~~Excess~~Loans and Cash Collateralize the L/C Obligations as set forth in Section 2.26(b). (fc) The Borrower ~~Representative~~ shall ~~deliver to~~ notify the Administrative Agent ~~notice, substantially in~~ of any Change of Control at least five (5) Business Days before the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11date thereof, which notice ~~must be received~~ shall constitute an offer by the ~~Administrative Agent not less than three Business Days (or such shorter time as~~ Borrower to terminate all of the ~~Administrative Agent shall reasonably agree) prior~~ Revolving Commitments of each Lender and to prepay all outstanding Revolving Loans thereunder on the date of such ~~prepayment shall be made~~Change of Control. The Administrative Agent ~~will~~ shall provide a notice thereof (each, a “Prepayment Notice”) to each Lender as promptly ~~notify each applicable Lender of such notice~~as practicable thereafter. Each ~~such~~ Lender may in its sole discretion reject all or a portion of its ~~Pro Rata Share~~ pro rata share of any ~~prepayment pursuant to clause (b~~offered permanent reduction of the Revolving Commitments of each Class under this Section 2.9(c) ~~or (c) above~~ (such declined amounts, ~~the~~ such Lender’s “Declined ~~Proceeds~~Amount”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower ~~Representative~~ no later than ~~12:00 p.m.~~ 5:00 P.M. three (~~New York City time), two~~ 3) Business Days after delivery of the ~~date of~~ Prepayment Notice regarding such permanent reduction and related mandatory prepayment (such time, the “Rejection Deadline”). Each Rejection Notice from a given Lender shall specify such Lender’s ~~receipt~~ Declined Amount of each Class of Revolving Commitments held by such ~~notice from the Administrative Agent~~Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent ~~within~~ by the ~~time frame specified above~~ Rejection Deadline with respect to any Class of Revolving Commitments held by such Lender with respect to a Prepayment Notice or such Rejection Notice fails to specify such Lender’s Declined Amount with respect to any Class of Revolving Commitments held by such Lender, any such failure will be deemed an acceptance of the total amount of such ~~prepayment~~permanent reduction of Revolving Commitments of the applicable Class (and related mandatory prepayment of Revolving Loans). ~~Any Declined Proceeds may be retained by~~ No later than 2:00 P.M. on the ~~Borrowers (such retained amount~~date of the Change of Control, the ~~“Retained~~ Borrower shall permanently reduce the Revolving Commitments of each Class of each Lender by an amount equal to such Lender’s Revolving Commitments of such Class then in effect less such Lender’s Declined ~~Proceeds”)~~Amount for such Class with respect to such Prepayment Notice. ~~The Borrower Representative~~ Upon the occurrence of any such reduction of Revolving Commitments, each of the Lenders shall ~~deliver to the Administrative Agent~~assign or purchase, as applicable, at the ~~time~~ principal amount thereof, such interests in the Revolving Loans and participation interests in L/C Obligations (but not, for the avoidance of ~~each prepayment required under this Section 2.11~~doubt, ~~an Officer’s Certificate setting forth~~ the related Revolving Commitments) outstanding on such date as shall be necessary in ~~reasonable detail the calculation~~ order that, after giving effect to all such assignments and purchases, all of the ~~amount of~~ Revolving Loans and participation interests in L/C Obligations outstanding on such ~~prepayment. (g) Amounts~~ date will be held by the remaining Lenders ratably in accordance with their Revolving Commitments after giving effect to such reductions in the Revolving Commitments. Such assignments and purchases shall be ~~applied in connection with any mandatory prepayments~~ made pursuant to ~~this Section 2.11~~ such procedures as may be designated by Administrative Agent and shall not be ~~applied~~ required to ~~the prepayment of the Term Loans~~ be effectuated in accordance with Section ~~2.17(b)~~10.6. In addition to the foregoing, to the extent that after giving effect to such reduction and reallocation, the Total Revolving Extensions of Credit would exceed the Total Revolving Commitments then in effect, the Borrower shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C Obligations in an amount not less than the applicable Minimum Collateral Amount multiplied by such excess amount. (d) The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Revolving Loans under ~~this~~ Section ~~2.11~~ 2.9 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid~~. (h) Notwithstanding any of the other provision of this Section 2.11, if any~~ . Each prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment and Revolving Commitment reduction pursuant to ~~a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent~~ Section 2.9(b) shall be ~~authorized (without any further action by or notice~~ allocated pro rata among all Lenders according to ~~or from any Borrower or any other Loan Party~~their respective Revolving Percentages. Each prepayment and Revolving Commitment reduction pursuant to Section 2.9(c) ~~to apply such amount to the prepayment of such Eurocurrency Loans~~ shall be allocated in accordance with ~~this Section 2.11 (determined as of the date~~ such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereinSection. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 2 contracts

Sources: Credit Agreement (CorePoint Lodging Inc.), Credit Agreement (CorePoint Lodging Inc.)

Mandatory Prepayments and Commitment Reductions. (a) Upon receipt by the Borrower of Net Cash Proceeds (whether in the form of a distribution from the Project Company, ProjectCo Pledgor or otherwise) in respect of any Project Company Asset Disposition, Project Company Casualty Event or Project Company Event of Eminent Domain, such Net Cash Proceeds shall be applied to the prepayment of the Loans and other Obligations in the order set forth in Section 2.7(f) and in accordance with the Collateral Agency Agreement. (b) If any Indebtedness shall be issued or incurred by ~~any Group Member~~ the Borrower or ProjectCo Pledgor (~~other than~~ excluding any Indebtedness that is permitted ~~to be incurred~~ by ~~any such Person in accordance with~~ Section ~~7.2~~7.1)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of receipt by the Borrower thereof, if the Borrower issued or incurred such ~~issuance~~ Indebtedness, or ~~incurrence toward~~ within five (5) Business Days of receipt by the ProjectCo Pledgor thereof, if the ProjectCo Pledgor issued or incurred such Indebtedness, to the prepayment of Loans and other Obligations in the ~~Term Loans as~~ order set forth in ~~clause (g) of this~~ Section ~~2.11. (b) Subject to clauses (d~~2.7(f) and ~~(i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii)~~ in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) accordance with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the LendersCollateral Agency Agreement. (c) ~~Subject~~ The Borrower shall, on each Repayment Date, commencing with the first Repayment Date, prepay the Term Loans outstanding on such Repayment Date with Excess Cash Flow as follows: (i) first, prepay the outstanding principal amount of the Term Loans in an amount equal to ~~clauses~~ the lesser of (A) the amount necessary to cause the outstanding principal amount of the Term Loans to equal the Target Debt Balance as of such Repayment Date and (B) 100% of the amount of Excess Cash Flow; and (ii) second, to the extent of any remaining amount of Excess Cash Flow following the application of funds as contemplated by clause (i) above, prepay the outstanding principal amount of the Term Loans in an amount equal to the excess, if any, of (A) the remaining Excess Cash Flow minus (B) the Excess Cash Distribution Amount. (d) ~~and~~ If any Additional Senior Notes (ias defined under the ProjectCo Note Purchase Agreement) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be ~~reinvested in its business (a “Reinvestment Event”)~~issued or incurred by the Project Company, an ~~aggregate~~ amount equal to 100% of ~~such~~ the Net Cash Proceeds thereof shall be applied ~~within five Business Days~~ on the date of ~~such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding~~ receipt thereof by the ~~foregoing, on each Reinvestment Prepayment Date, an amount equal~~ Borrower to the ~~Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay~~ prepayment of Loans and other Obligations in the ~~outstanding Term Loans as~~ order set forth in Section ~~2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b~~2.7(f) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)Collateral Agency Agreement.

Appears in 2 contracts

Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If the Borrower or any of its Subsidiaries (or Holdings on behalf of the Borrower or any of its Subsidiaries) shall receive Net Cash Proceeds from any: (i) (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) Asset Sale, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments, in each case, to the extent contemplated by Section 6.17, the Depositary Agreement and as set forth in Section 2.9(c). (ii) (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) Recovery Event, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments, in each case, to the extent contemplated by Section 6.16, the Depositary Agreement and as set forth in Section 2.9(c). 42 Sunshine (Northeast) – Credit Agreement (iii) Specified Asset Disposition, it shall deposit (or cause to be deposited) upon receipt thereof an amount equal to the Specified AD Prepayment Amount to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Term Loans to the extent contemplated by Section 7.5(n), the Depositary Agreement and as set forth in Section 2.9(c). (iv) PPA Buyout, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account in an amount equal to: (A) if, after giving pro forma effect to such PPA Buyout, the aggregate reduction in projected Cash Available for Debt Service resulting from such PPA Buyout and all other PPA Buyouts and Specified Asset Dispositions occurring before and as of the date of such PPA Buyout does not exceed 25% of Cash Available for Debt Service from the Projects (as determined by reference to the Projections delivered as of the Closing Date), the PPA Buyout Prepayment Amount and such Net Cash Proceeds shall be applied to the prepayment of the Term Loans to the extent contemplated by the Depositary Agreement and as set forth in Section 2.9(c); or (B) if, after giving pro forma effect to such PPA Buyout, the aggregate reduction in projected Cash Available for Debt Service resulting from such PPA Buyout and all other PPA Buyouts and Specified Asset Dispositions occurring before and as of the date of such PPA Buyout exceeds 25% of Cash Available for Debt Service from the Projects (as determined by reference to the Projections delivered as of the Closing Date), 100% of such Net Cash Proceeds and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reductions of all Commitments, in each case, to the extent contemplated by the Depositary Agreement and as set forth in Section 2.9(c). (b) If any Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence ~~toward~~ to the prepayment of Loans in the ~~Term Loans~~ inverse order of maturity and reduction of Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11. (b) Subject to clauses (d~~2.9(c) and ~~(i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii)~~ in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) accordance with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the LendersDepositary Agreement. (c) ~~Subject to clauses~~ 43 Sunshine (dNortheast) ~~and~~ – Credit Agreement (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments of Loans and reductions of Commitments made pursuant to ~~this Section 2.11~~ paragraphs (a)(i), (a)(ii), (a)(iv)(B) and (b) above shall be applied without penalty or premium (except for breakage costs, if any) as follows: (A) first, simultaneously to ~~the prepayment of~~ prepay the Term Loans in accordance with Section ~~2.17(b~~2.15(b) and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.8; (B) second, to repay the Revolving Loans in accordance with Section 2.15(c). ; (C) third, to ratably Cash Collateralize any outstanding Letters of Credit; and (D) fourth, any amount remaining may be retained by the Borrower; provided that all of the Revolving Commitments shall have been terminated in accordance with Section 2.15(c). (ii) Amounts to be applied in connection with prepayments of Term Loans made pursuant to paragraphs (a)(iii) and (a)(iv)(A) above shall be applied without penalty or premium (except for breakage costs, if any) to prepay the Term Loans in accordance with Section 2.15(b) and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.8. (iii) The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type.~~ made, first, to ABR Loans and, second, to Eurodollar Loans. (iv) Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 2 contracts

Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Term Loan Refinancing Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(e); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) ~~Subject~~ If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, the Asset Sale Percentage of such Net Cash Proceeds shall be applied within 10 Business Days after such date toward the prepayment of the Term Loans as set forth in Section 2.11(e); provided, that, notwithstanding the foregoing, no such prepayment shall be required to ~~clauses~~ the extent that the aggregate Net Cash Proceeds received from Asset Sales or Recovery Events in any fiscal year is less than $50,000,000 (dit being understood that only amounts in excess of such thresholds shall be required to be applied to any prepayment); provided further that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(e); provided further that, notwithstanding the foregoing, such Net Cash Proceeds may be applied towards the prepayment or purchase of Pari Passu Secured Indebtedness to the extent the documentation governing such Indebtedness requires such a prepayment or purchase with Net Cash Proceeds from any Asset Sale or Recovery Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds and (iy) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding principal amount of Term Loans and all such other Indebtedness (provided that, in the event that the Borrower or applicable Restricted Subsidiary makes an offer to the holders of such Pari Passu Secured Indebtedness to prepay or purchase such Pari Passu Secured Indebtedness in an amount permitted under this Section ~~2.11~~2.11(b), ifto the extent that such offer is declined by holders of such Pari Passu Secured Indebtedness (the declined amount, the “Other Debt Declined Amount”), the Borrower shall be required to prepay Term Loans in an amount equal to such Other Debt Declined Amount as if the Other Debt Declined Amount were Net Cash Proceeds received on the final date by which such declining holders were required to give notice of their Other Debt Declined Amount). (c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.11(e) the excess of (gx) the ECF Percentage of ~~this Section 2.11, provided that no~~ such ~~prepayment shall be made if the~~ Excess Cash Flow ~~for~~ over (y) solely to the extent not funded with the proceeds of long-term Indebtedness or the proceeds of any issuance of Capital Stock, the aggregate amount of (1) all optional prepayments of Term Loans made during such Excess Cash Flow Period ~~is less than $10,000,000~~ pursuant to Section 2.10, (~~and, if~~ 2) all optional prepayments of Pari Passu Secured Indebtedness made during such Excess Cash Flow ~~exceeds~~ Period, (3) all prepayments of ABL Loans during such ~~amount~~Excess Cash Flow Period to the extent accompanied by a permanent reduction of the ABL Commitments, ~~only~~ and (4) all Loan purchases made during such ~~excess~~ Excess Cash Flow Period pursuant to Section 2.25 and Section 10.6(e) (provided that the aggregate amount of any such purchase shall be ~~subject to prepayment~~the amount of the Borrower’s cash payment in respect of such purchase). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the ~~fiscal year~~ Excess Cash Flow Period with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) ~~Notwithstanding anything to~~ On or after the ~~contrary~~ fifth anniversary of the Closing Date, the Borrower shall pay in ~~this Agreement~~ cash all accrued interest and/or original issue discount (~~including clauses (b~~as determined for U.S. federal income tax purposes) ~~and (c) above),~~ to the extent necessary so that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected Initial Term Loans will not be ~~required to be applied to repay Loans at~~ classified as “applicable high yield discount obligations” under Section 163(i) of the ~~times set forth in this Section 2.11 but may be retained by~~ Code (or any successor provision). It is the ~~applicable Subsidiary or branch (~~intent of the ~~Borrowers hereby agreeing to cause~~ Borrower that payments on the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Initial Term Loans made pursuant to this Section ~~2.11~~2.11(d) be made such that Section 163(e)(5) of the Code (or any successor provision) would not apply to the Initial Term Loans and the provisions of this Agreement related to the Initial Term Loans shall be applied consistently therewith. The computations and determinations made by the Borrower for purposes of this Section 2.11(d) shall be binding upon each Lender. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment ~~of Loans~~ pursuant to this Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 ~~(except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) ~~Notwithstanding~~ With respect to any prepayment pursuant to this Section 2.11 of Initial Term Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the ~~other provision~~ amount of ~~this Section 2.11, if any~~ such prepayment ~~of Eurocurrency Loans~~ that is required to be made under this Section ~~2.11 other~~ 2.11. Any Lender may decline to accept all (but not less than ~~on the last day~~ all) of ~~the Interest Period applicable thereto, the applicable Borrower may, in~~ its ~~sole discretion, deposit the amount~~ share of any such prepayment ~~otherwise required to be made thereunder with~~ (the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory “Declined Amount”) by providing written notice to the Administrative Agent ~~until~~ no later than two Business Days after the ~~last day~~ date of such ~~Interest Period, at which time~~ Lender’s receipt of notice from the Administrative Agent ~~shall be authorized (without any further action by or~~ regarding such prepayment. If the Lender does not give a notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent ~~shall also be authorized (without any further action by~~ on or ~~notice~~ prior to ~~or from any Borrower or any other Loan Party) to apply~~ such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by second Business Day informing the Administrative Agent ~~pursuant~~ that it declines to ~~this clause (h) pending application~~ accept the applicable prepayment, then such Lender will be deemed to ~~any Eurocurrency Loans shall be held and applied to the satisfaction of~~ have accepted such ~~Eurocurrency Loans prior to any other application of such property as~~ prepayment. Such Lender’s Declined Amount may be ~~provided for herein~~retained by the Borrower. (ig) Notwithstanding ~~the foregoing~~ any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the ~~Borrower Representative’s option, outstanding Indebtedness that is secured~~ times provided in this Section 2.11 but may be retained by the ~~Collateral~~ applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (in the case of Excess Cash Flow, net of additional taxes payable or reasonably estimated to be payable as a ~~pari passu basis (determined without regard~~ result thereof) to the ~~control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory~~ prepayment of the Term Loans pursuant to this Section ~~2.11(b) and/or~~ 2.11 (~~c), and the amount of any~~ provided that no such prepayment ~~required~~ of the Term Loans pursuant to ~~be made hereunder~~ this Section 2.11 shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the ~~holders~~ case of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less (in the case of Excess Cash Flow) the amount of additional taxes that would ~~otherwise~~ have been ~~required to be applied~~ payable or reserved against if such ~~Other Applicable Indebtedness was not then outstanding~~Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).

Appears in 2 contracts

Sources: Term Loan Credit Agreement (Rent a Center Inc De), Term Loan Credit Agreement (Rent a Center Inc De)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(d); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) ~~Subject to clauses (d) and (i) of this Section 2.11~~If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness delivered in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such periodthereof, such ~~amount~~ Net Cash Proceeds shall be ~~added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative,~~ applied within five Business Days after ~~the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied~~ such date toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(d); provided, ~~provided that~~ that, notwithstanding the foregoing, no such prepayment shall be ~~made if~~ required to the ~~Excess~~ extent that the aggregate Net Cash ~~Flow for~~ Proceeds received from Asset Sales or Recovery Events in any ~~Excess Cash Flow Period~~ fiscal year is less than $~~10,000,000~~ 25,000,000 (~~and, if Excess Cash Flow exceeds~~ it being understood that only amounts in excess of such ~~amount, only such excess~~ thresholds shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be ~~delivered~~ applied to ~~the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on~~ any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (iprepayment), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided further that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~2.11(d)~~. (d)~~ . Notwithstanding ~~anything to~~ the ~~contrary in this Agreement (including clauses (b) and (c) above)~~foregoing, to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds ~~or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth~~ in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period excess of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow $25,000,000 may be applied to Other Applicable Indebtedness ~~only~~ to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset ~~Sale,~~ Sale or Recovery Event ~~or Excess Cash Flow~~ is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds ~~or Excess Cash Flow~~ applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate ~~Outstanding Amount~~ outstanding principal amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans~~. To~~ . (c) If, for any fiscal year of the Borrower commencing with the first full fiscal year after the Closing Date, there shall be Excess Cash Flow in excess of $25,000,000, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans as set forth in Section 2.11(d) the excess of (x) the ECF Percentage of such Excess Cash Flow over (y) solely to the extent not funded with the ~~holders~~ proceeds of ~~Other Applicable Indebtedness~~ Indebtedness, the aggregate amount of all optional prepayments of Term Loans made during such fiscal year pursuant to Section 2.10, plus the aggregate amount of all Loan purchases made during such fiscal year pursuant to Section 2.25 and Section 10.6(e) (including all purchases of Loans (as defined in the Existing Credit Agreement) made during such fiscal year pursuant to Sections 2.25 and 10.6(e) of the Existing Credit Agreement) (provided that the aggregate amount of any such purchase shall be the amount of the Borrower’s cash payment in respect of such purchase). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered. (d) Amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment pursuant to this Section 2.11 shall be made first, to ABR Loans and, second, to Term Benchmark Loans or RFR Loans, if applicable. Each prepayment of the Loans under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (e) With respect to any prepayment pursuant to this Section 2.11 of Term B Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment that is required to be made under this Section 2.11. Any Lender may decline to accept all (but not less than all) of its share of any such prepayment (the “Declined Amount”) by providing written notice to the Administrative Agent no later than two Business Days after the date of such ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. If the Lender does not give a notice to the Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. Such ▇▇▇▇▇▇’s Declined Amount may be retained by the Borrower. (f) Notwithstanding any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such ~~indebtedness repurchased~~material adverse tax consequences, ~~repaid~~ such repatriation will be promptly effected and such repatriated Net Cash Proceeds or ~~prepaid with~~ Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.11 (provided that no such prepayment of the Term Loans pursuant to this Section 2.11 shall be required in the case of any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences), if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would ~~otherwise~~ have been ~~required to be applied~~ payable or reserved against if such ~~Other Applicable Indebtedness was not then outstanding~~Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).

Appears in 2 contracts

Sources: Term Loan Credit Agreement (TTM Technologies Inc), Term Loan Credit Agreement (TTM Technologies Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted to be incurred by any ~~such Person~~ Group Member in accordance with Section ~~7.2~~6.1, except for Indebtedness incurred pursuant to Section 6.1(d) and Credit Agreement Refinancing Indebtedness), concurrently with, and as a condition to the closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the ~~Term~~ Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.6(d). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if~~If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to the excess of (i) ~~the~~ ECF Percentage ~~for such period~~ of such Excess Cash Flow over (ii) ~~in each case at the option of the Borrower Representative and~~ to the extent not funded with ~~(x)~~ the proceeds of Indebtedness ~~constituting “long term indebtedness” (or a comparable caption) under GAAP~~ (other than Indebtedness in respect of any revolving credit facility~~) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4~~), the aggregate amount of ~~(1)~~ all Purchases by ~~any Permitted Auction Purchaser~~ the Company or MS Holdco (determined as by the actual cash purchase price paid and not the par value of the Loans ~~purchased by such Permitted Auction Purchaser~~purchased) ~~pursuant to a Dutch Auction or open market purchase permitted hereunder, (2)~~ and voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) made by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower ~~Representative, after~~ during the ~~Excess Cash Flow Period and prior to the Excess Cash Flow Application Date~~Specified Period, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the ~~Term~~ Loans as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.6(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 ten Business Days after the date on which the financial statements of ~~UK Holdco~~ the Company referred to in Section ~~6.1(a~~5.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) ~~Subject to clauses (d) and (i) of this Section 2.11, if,~~ If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event ~~in excess of (i)~~ which, when taken together with the ~~greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other~~ Net Cash Proceeds ~~not excluded pursuant to~~ theretofore received by any Group Member from such Asset Sale or Recovery Event (collectively the ~~preceding clause (i~~“Cumulative Net Cash Proceeds Amount”), ~~the~~ are greater of than $5,000,000 ~~and 1.6% of Consolidated EBITDA as of~~ (the ~~most recently ended Reference Period for all~~ “Asset Sale Reduction Amount”), then, unless a Reinvestment Event has occurred, such Net Cash Proceeds ~~in any fiscal year, then, unless~~ (up to an amount equal to the ~~Borrower Representative has determined in good faith that~~ excess of the Cumulative Net Cash Proceeds Amount over the Asset Sale Reduction Amount) shall be applied from such Net Cash Proceeds ~~shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied~~ within ~~five~~ ten Business Days of such date to either (x) prepay outstanding Term Loans in accordance with ~~this~~ Section ~~2.11~~2.6(d) or (y) if such Net Cash Proceeds are from the sale or disposition of any, or a Recovery Event in respect of, ABL Priority Collateral, repay outstanding borrowings under the ABL Credit Agreement; provided ~~that,~~ that notwithstanding the ~~foregoing,~~ foregoing on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale ~~or Recovery Event,~~ Event shall be applied to prepay the outstanding Term Loans as set forth in Section ~~2.11(g~~2.6(d). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 2.6(b) and (c) shall be ~~applied~~ applied, to (A) in the case of a prepayment pursuant to clause (b) above, the prepayment of the Term Loans ~~in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of~~ and (B) at the ~~Loans under this Section 2.11 (except~~ Company’s option in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such a prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (hc) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s optionabove, outstanding Indebtedness ~~that is secured by the Collateral on a pari passu basis~~ incurred pursuant to Section 6.1(d) and (~~determined without regard to the control of remedies~~e) ~~with the Obligations hereunder~~ (collectively, “Other Applicable Indebtedness”~~) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c~~)~~, and the amount of~~ ; provided that any such ~~prepayment required to be made hereunder shall be reduced accordingly. Any~~ Net Cash Proceeds ~~or Excess Cash Flow~~ may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset ~~Sale,~~ Sale or Recovery Event ~~or Excess Cash Flow~~ is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds ~~or Excess Cash Flow~~ applied to prepay outstanding Term Loans in accordance with the terms hereof), ) unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate ~~Outstanding Amount~~ outstanding principal amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans~~. To~~ ; provided further that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash ~~Proceeds or Excess Cash Flow~~Proceeds, the declined amount of such Net Cash Proceeds ~~or Excess Cash Flow~~ shall promptly (and, in any event, within 10 ten Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds ~~or Excess Cash Flow~~ would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding). Each prepayment of the Term Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Administrative Agent will promptly notify each Lender holding Term Loans of the contents of the Company’s repayment notice and of such Lender’s pro rata share of any repayment. Each such Lender may reject all or a portion of its pro rata share of any mandatory repayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 P.M. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such repayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds shall be retained by the Company and its Restricted Subsidiaries (subject to any prepayment obligations it may have with respect to other Indebtedness). (e) Notwithstanding the foregoing, if the Company reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be prepaid pursuant to Sections 2.6(b) and (c) would result in material adverse tax consequences or violate local law in respect of upstreaming proceeds (including financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), in each case as set forth in a certificate delivered by a Responsible Officer of the Company to the Administrative Agent, then the Borrower shall not be required to prepay such amounts as required under Sections 2.6(b) and (c) until such material tax consequences or local law violation no longer exists (any such limitation, a “Repatriation Limitation”); provided that the Borrower shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without violating local law or incurring material adverse tax consequences. (f) The Borrower shall deliver to the Administrative Agent (who will notify each Lender) notice of each prepayment required under this Section 2.6 not less than five Business Days prior to the date such prepayment shall be made (each such date, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the principal amount of each Loan (or portion thereof) to be prepaid, and (iii) the Type of each Loan being prepaid. The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.6, a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment.

Appears in 2 contracts

Sources: Credit Agreement, Credit Agreement (TMS International Corp.)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Restricted Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ issued or incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Section 7.2(h)~~, concurrently with, and as a condition to closing of such transaction~~)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied ~~on the date of~~ within five Business Days after such ~~issuance or incurrence~~ receipt thereof toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.12(d). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for~~ If on any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ date the Borrower ~~Representative and to the extent not funded with (x) the proceeds~~ or any of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the its Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions shall receive Net Cash Proceeds from any Asset Sale or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi)Recovery Event then, in each case, ~~made during~~in excess of $2,500,000 in any single transaction or series of related transactions, ~~or committed to~~ unless a Reinvestment Notice shall be ~~made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made~~ delivered in ~~cash within such period~~respect thereof, such ~~amount~~ Net Cash Proceeds shall be ~~added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative,~~ applied within five Business Days after ~~the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied~~ such receipt toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.12(d); provided, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~2.12(d). (c) [Reserved]. (d) ~~Notwithstanding anything~~ To the extent that at any time the aggregate outstanding principal amount of the Revolving Credit Loans and Letters of Credit shall exceed the Total Revolving Credit Commitments then in effect, then the Borrower shall, within four Business Days, repay the Revolving Credit Loans to eliminate such excess. (e) Amounts to be applied in connection with prepayments of Term Loans made pursuant to this Section 2.12 shall be applied to remaining installments of the Term Loans as directed by the Borrower, or in the absence of such direction in the inverse order of maturity. Each prepayment of the Loans pursuant to this Section 2.12 shall be accompanied by accrued interest to the ~~contrary in~~ date of such prepayment on the amount prepaid. (f) Notwithstanding any other provisions of this ~~Agreement (including clauses (b) and (c) above)~~Section 2.12, to the extent that ~~the Borrower Representative has determined in good faith that (i)~~ any of or all of the Net Cash Proceeds of any Asset Sale or by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary ~~or Excess Cash Flow~~ attributable to ~~Subsidiaries~~ a Foreign Subsidiary that is required to be applied to prepay Term Loans pursuant to this Section 2.12 (~~or branches of Subsidiaries~~i) ~~are~~ would be prohibited or delayed by any applicable local law ~~from being repatriated to the relevant Borrower(s)~~ (~~including~~ including, without limitation, as a result of laws or regulations relating to financial ~~assistance and~~ assistance, corporate ~~benefit~~ benefit, restrictions on upstreaming of cash intragroup and fiduciary and statutory duties of ~~the relevant directors), (ii~~directors of such Foreign Subsidiary) ~~such repatriation would present a material risk of liability~~ from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or ~~its directors~~ conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or ~~officers (~~result in, or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (including on account of financial assistance, corporate benefit, thin capitalization, capital maintenance or similar considerations) (provided that the Borrower shall take commercially reasonable actions available under local law to permit such repatriation) or (ii) repatriation of such amount to the Borrower or any Subsidiary would result in material adverse ~~Tax consequences~~tax consequences as determined in good faith by the Borrower (including, without limitation, as a result of any withholding of cash or the upstreaming of cash) with respect to such amount, then in each case, the Borrower shall not be required to apply the portion of such Net Cash Proceeds ~~or Excess Cash Flow~~ so affected ~~will not be required~~ to ~~be applied to repay~~ prepay the Term Loans at the times ~~set forth~~ provided in clause (b) of this Section ~~2.11~~ 2.12 but may be retained by the applicable Foreign Subsidiary so long as clause (i) or ~~branch~~ (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); providedii) above is applicable, ~~that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in~~ and once neither clause (i) nor clause (ii) ~~above, or no such material adverse Tax consequences would result from such distribution, as the case may be~~above is applicable, such ~~distribution~~ repatriation will be promptly effected and such ~~distributed~~ repatriated Net Cash Proceeds will be promptly (and in any event not later than 10 five Business Days after such ~~distribution~~repatriation) applied (net of additional Taxes payable or ~~reserved against~~ reasonably estimated to be payable as a result thereof) to the ~~repayment~~ prepayment of the Term Loans to the extent required pursuant to this Section 2.12; provided that no such prepayment of the Term Loans pursuant to this Section ~~2.11.~~ 2.12 shall be required in the case of any such Net Cash Proceeds the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required under this Section 2.12(f) to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice, the Borrower applies an amount equal to (~~e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”~~x) the ~~Total Revolving Commitments then in effect~~amount of such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash Proceeds had been received by the Borrower or a Domestic Subsidiary rather than such Foreign Subsidiary, minus (y) the ~~Revolving Borrowers shall immediately~~ amount of additional Taxes that would have been payable or reserved against if such Net Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that would be calculated if received by such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving ExcessForeign Subsidiary). (fg) The Borrower ~~Representative~~ shall ~~deliver to~~ notify the Administrative Agent ~~notice, substantially~~ in ~~the form~~ writing of ~~Exhibit E or such other form as may~~ any mandatory prepayment of Term Loans required to be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under made pursuant to this Section ~~2.11, which notice must be received by the Administrative Agent not less than three Business Days (~~2.12 concurrently with or ~~such shorter time as the Administrative Agent shall reasonably agree)~~ prior to the date of such prepayment. Each such notice shall specify the date of such prepayment ~~shall be made~~and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each ~~applicable~~ Lender holding Term Loans of the contents of such ~~notice~~prepayment notice and of such Lender’s pro rata share of the prepayment. Each ~~such~~ Term Loan Lender may reject all (but not less than all) of its ~~Pro Rata Share~~ pro rata share of any mandatory prepayment ~~pursuant to clause (b~~other than any such mandatory prepayment made in accordance with Section 2.12(a) ~~or (c) above~~ (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to this Section 2.12 by providing written notice (each, a “Rejection Notice”) to the Administrative Agent ~~and the Borrower Representative~~ no later than ~~12:00 p.m. (New York City time)~~5:00 p.m., Local Time two Business Days after the date of such Lender’s receipt of ~~such~~ notice from the Administrative ~~Agent~~Agent regarding such prepayment. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified ~~above~~ above, any such failure will be deemed an acceptance of the total amount of such ~~prepayment~~mandatory prepayment of Term Loans. Any Declined Proceeds ~~may~~ shall be returned to the Borrower (at the Borrower’s expense) to be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepaymentBorrower. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 2 contracts

Sources: Credit Agreement (Forrester Research, Inc.), Credit Agreement (Forrester Research, Inc.)

Mandatory Prepayments and Commitment Reductions. (ai) If any ~~Indebtedness~~ Capital Stock (other than stock, stock options and other equity based awards granted directly or indirectly to employees, officers, consultants or directors, directors’ qualifying shares and stock issued to another Group Member or in connection with an acquisition by the Borrower or any of its Subsidiaries otherwise permitted by this Agreement) shall be ~~incurred~~ issued by any Group ~~Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction~~Member, an amount equal to ~~100~~50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance ~~or incurrence~~ toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.9(c). (gii) ~~of this Section 2.11.~~[Intentionally omitted] (b) ~~Subject to clauses (d) and (i) of this Section 2.11~~If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be ~~Excess Cash Flow~~delivered in respect thereof, an amount equal to ~~(i) the ECF Percentage for such period~~ 50% of such ~~Excess~~ Net Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount Proceeds shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, applied on ~~the relevant Excess Cash Flow Application Date, be applied~~ such date toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.9(c); provided, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~2.9(c). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~2.15(b). The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 2 contracts

Sources: Credit Agreement (Gartner Inc), Credit Agreement (Gartner Inc)

Mandatory Prepayments and Commitment Reductions. (a) If the Borrower or any of its Subsidiaries (or Holdings on behalf of the Borrower or any of its Subsidiaries) shall receive Net Cash Proceeds from any: (i) (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) Asset Sale, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments, in each case, to the extent contemplated by Section 6.17, the Depositary Agreement and as set forth in Section 2.9(c). (ii) (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) Recovery Event, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments, in each case, to the extent contemplated by Section 6.16, the Depositary Agreement and as set forth in Section 2.9(c). (iii) Specified Asset Disposition, it shall deposit (or cause to be deposited) upon receipt thereof an amount equal to the Specified AD Prepayment Amount to the Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Term Loans to the extent contemplated by Section 7.5(n), the Depositary Agreement and as set forth in Section 2.9(c). (iv) PPA Buyout, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Event Proceeds Account in an amount equal to: (A) if, after giving pro forma effect to such PPA Buyout, the aggregate reduction in projected Cash Available for Debt Service resulting from such PPA Buyout and all other PPA Buyouts and Specified Asset Dispositions occurring before and as of the date of such PPA Buyout does not exceed 25% of Cash Available for Debt Service from the Projects (as determined by reference to the Projections delivered as of the Closing Date), the PPA Buyout Prepayment Amount and such Net Cash Proceeds shall be applied to the prepayment of the Term Loans to the extent contemplated by the Depositary Agreement and as set forth in Section 2.9(c); or (B) if, after giving pro forma effect to such PPA Buyout, the aggregate reduction in projected Cash Available for Debt Service resulting from such PPA Buyout and all other PPA Buyouts and Specified Asset Dispositions occurring before and as of the date of such PPA Buyout exceeds 25% of Cash Available for Debt Service from the Projects (as determined by reference to the Projections delivered as of the Closing Date), 100% of such Net Cash Proceeds and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reductions of all Commitments, in each case, to the extent contemplated by the Depositary Agreement and as set forth in Section 2.9(c). (b) If any Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence ~~toward~~ to the prepayment of ~~the Term~~ Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the ~~case~~ inverse order of ~~Revolving Loans, only to the extent~~ maturity and reduction of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans Commitments as set forth in Section ~~2.11(g)~~2.9(c) and in accordance with the Depositary Agreement. (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (~~i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments of Loans and reductions of Commitments made pursuant to ~~this Section 2.11~~ paragraphs (a)(i), (a)(ii), (a)(iv)(B) and (b) above shall be applied without penalty or premium (except for breakage costs, if any) as follows: (A) first, simultaneously to ~~the prepayment of~~ prepay the Term Loans in accordance with Section ~~2.17(b~~2.15(b) and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.8; (B) second, to repay the Revolving Loans in accordance with Section 2.15(c); (C) third, to ratably Cash Collateralize any outstanding Letters of Credit; and (D) fourth, any amount remaining may be retained by the Borrower; provided that all of the Revolving Commitments shall have been terminated in accordance with Section 2.15(c). (ii) Amounts to be applied in connection with prepayments of Term Loans made pursuant to paragraphs (a)(iii) and (a)(iv)(A) above shall be applied without penalty or premium (except for breakage costs, if any) to prepay the Term Loans in accordance with Section 2.15(b) and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.8. 44 Sunshine (National) – Credit Agreement (iii) The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type.~~ made, first, to ABR Loans and, second, to Eurodollar Loans. (iv) Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 2 contracts

Sources: Credit Agreement (REV Renewables, Inc.), Credit Agreement (REV Renewables, Inc.)

Mandatory Prepayments and Commitment Reductions. (ai) If, at any time, the total Revolving Credit Exposures exceeds the Loan Limit (including, without limitation, after giving effect to a termination or any reduction of the total Commitments pursuant to Section 2.06(b) or Section 10.02(b), or otherwise), then the Borrower shall, without notice or demand, (A) prepay the Borrowings in an aggregate principal amount equal to such excess, and (B) if any excess remains (or would remain) after prepaying all of the Borrowings as a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as Cash Collateral as provided in Section 2.07(j), (1) in the case of a termination or any reduction of the total Commitments after giving effect to a termination or any reduction of the total Commitments pursuant to Section 2.06(b) or Section 10.02(b), immediately on the date of such termination or reduction and (2) in any case other than a termination or any reduction of the total Commitments pursuant to Section 2.06(b) or Section 10.02(b), within five (5) Business Days after the date that the total Revolving Credit Exposures exceeds the Loan Limit. (ii) If, during any fiscal year of the Borrower, any Relevant Party receives Net Cash Proceeds from any Asset Sale or Recovery Event, and the amount of such Net Cash Proceeds, when combined with the aggregate amount of all Net Cash Proceeds received by all Relevant Parties from Asset Sales and Recovery Events during such fiscal year, exceeds $5,000,000, then, no later than three (3) Business Days following receipt of such Net Cash Proceeds (unless a Reinvestment Notice in respect thereof has been delivered to the Administrative Agent on or prior to such date), (A) the Borrower shall apply such Net Cash Proceeds to prepay Borrowings (and cash collateralize LC Exposure to the extent that all Borrowings have been prepaid) on such date in an amount equal to 100% of such Net Cash Proceeds and (B) the total Commitments shall be reduced automatically (without any further action) on the date of receipt of such Net Cash Proceeds by an amount equal to 100% of such Net Cash Proceeds; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, (1) the Borrower shall prepay Borrowings (and cash collateralize LC Exposure to the extent that all Borrowings have been prepaid) in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event and (2) the total Commitments shall be reduced automatically (without any further action) on such Reinvestment Prepayment Date (to the extent otherwise required by clause (B) above) by an amount equal to the Reinvestment Prepayment Amount with respect to such Reinvestment Event. (iii) If any Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ other Relevant Party (~~other than~~ excluding any Indebtedness permitted ~~to be incurred~~ by ~~any such Person in accordance with~~ Section ~~7.2~~9.02), ~~concurrently with, and as a condition to closing of such transaction,~~ then (A) the Borrower shall apply an amount equal to 100% of the Net Cash Proceeds thereof ~~shall be applied~~ on the date of such issuance or incurrence ~~toward the prepayment of the Term Loans as set forth in clause~~ to prepay Borrowings (~~g) of this Section 2.11. (b) Subject to clauses (d)~~ and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and cash collateralize LC Exposure to the extent ~~not funded with (x~~that all Borrowings have been prepaid) ~~the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness~~ on such date in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds and (B) the total Commitments shall be ~~applied within five Business Days~~ reduced automatically (without any further action) on the date of ~~such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding~~ the ~~foregoing, on each Reinvestment Prepayment Date,~~ issuance of incurrence thereof by an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt 100% of such Net Cash Proceeds~~, if such repatriation becomes~~ . Nothing in this paragraph is intended to permit any Relevant Party to incur Indebtedness other than as permitted under Section 9.02, and any such ~~applicable local law, would not present~~ incurrence of Indebtedness shall be a ~~material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected~~ violation of Section 9.02 and ~~such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net~~ shall constitute an Event of ~~additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11~~Default. (eiv) ~~In the event the aggregate Outstanding Amount~~ Each prepayment of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment Borrowings pursuant to ~~clause (b~~Section 3.04(b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied ratably to the ~~prepayment of~~ Loans included in the ~~Term Loans in accordance with Section 2.17(b)~~prepaid Borrowings. ~~The application of any prepayment of Loans~~ Prepayments pursuant to ~~this~~ Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans3.04(b) shall be accompanied by accrued interest to the ~~date of such prepayment on~~ extent required by Section 3.02 and any payments to the ~~amount prepaid. (h) Notwithstanding any of the other provision of this~~ extent required by Section ~~2.11, if any~~ 5.02. Each prepayment of ~~Eurocurrency Loans~~ Borrowings pursuant to Section 3.04(b) shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is ~~required~~ then outstanding, to ~~be made under this Section 2.11 other than on~~ each such Eurodollar Borrowing in order of priority beginning with the ~~last day~~ Eurodollar Borrowing with the least number of days remaining in the Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in the Interest Period applicable thereto, . Each reduction of the ~~applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required~~ total Commitments pursuant to this Section 3.04(b) shall be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans ratably in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereineach Lender’s Applicable Percentage. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 2 contracts

Sources: Credit Agreement (Riviera Resources, Inc.), Credit Agreement (Riviera Resources, LLC)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (other than ~~any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2~~Excluded Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g); provided that (i) to the extent that the Consolidated Leverage Ratio as of the date of incurrence of Indebtedness pursuant to clause (gxv) or (xviii) of Section 8.2(a), calculated on a pro forma basis after giving effect to the incurrence of such Indebtedness (and any required repayments hereunder), is greater than or equal to 4.0 to 1.0 but less than 5.0 to 1.0, in each case after giving effect thereto, only 75% of the Net Cash Proceeds of such Indebtedness shall be applied on the date of such incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g) and (ii) to the extent that the Consolidated Leverage Ratio as of the date of incurrence of Indebtedness pursuant to clause (xv) or (xviii) of Section 8.2(a), calculated on a pro forma basis after giving effect to the incurrence of such Indebtedness (and any required repayments hereunder), is less than 4.0 to 1.0 after giving effect thereto, no prepayment of Term Loans or reduction of Revolving Commitments shall be required pursuant to this ~~Section 2.11~~Section. (b) ~~Subject~~ If any Capital Stock shall be issued or sold by any Group Member (other than issuances of Capital Stock to ~~clauses~~ any Group Member or as contemplated by Section 8.6(d)), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or sale toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g); provided that to the extent that the Consolidated Leverage Ratio as of the date of such issuance or sale of Capital Stock, calculated on a pro forma basis after giving effect to the such issuance or sale (and any required repayments hereunder), is less than 4.5 to 1.0 after giving effect thereto, no prepayment of Term Loans or reduction of Revolving Commitments shall be required pursuant to this Section. (c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g); provided, that (i) notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g) and (ii) the Borrower shall use the Net Cash Proceeds of any Disposition to prepay Term Loans and reduce the Revolving Commitments as set forth in Section 4.2(g) to the extent necessary to avoid having to prepay or to offer to prepay any of the Notes, any Additional Senior Subordinated Debt or any Additional Senior Unsecured Notes. (d) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period,~~ fiscal year of the Borrower there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g)~~ Section 4.2(g); provided that the amount of any prepayment of Term Loans and reduction of Revolving Commitments required pursuant to this Section ~~2.11, provided that no such prepayment~~ 4.2(d) shall be reduced by the amount of any optional prepayments of Term Loans and optional prepayments of Revolving Loans and Swingline Loans to the extent accompanying permanent optional reductions of Revolving Commitments, in each case to the extent such prepayments are made if during the ~~Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment)~~relevant fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section ~~6.1(a~~7.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess.[Reserved] (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment.[Reserved] (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~applied~~ applied, first, to prepay the Term Loans and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the ~~Term~~ Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 4.2 (except in the case of Revolving Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding ~~any of~~ anything to the ~~other provision of this~~ contrary in Section ~~2.11~~4.2(g) or 4.8, ~~if any prepayment of Eurocurrency Loans is required~~ with respect to ~~be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ the amount of any mandatory prepayment described in Section 4.2 that is allocated to Tranche B-2 Term Loans (such ~~prepayment otherwise required to be made thereunder with~~ amounts, the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period"Tranche B-2 Prepayment Amount"), at ~~which~~ any time when Tranche A-2 Term Loans remain outstanding, the ~~Administrative Agent shall be authorized (without any further action by or notice to or from any~~ Borrower ~~or any other Loan Party) to apply~~ will, in lieu of applying such amount to the prepayment of ~~such Eurocurrency~~ Tranche B-2 Term Loans as provided in ~~accordance with this Section 2.11~~ paragraph (~~determined as of~~ g) above, on the date specified in Section 4.2 for such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Defaultprepayment, give the Administrative Agent ~~shall also be authorized~~ telephonic notice (~~without any further action by or notice to or from any Borrower or any other Loan Party~~promptly confirmed in writing) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by requesting that the Administrative Agent ~~pursuant~~ prepare and provide to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)each Tranche B-2

Appears in 1 contract

Sources: Credit Agreement (Donnelley R H Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by CC Operating or any ~~Group Member~~ Subsidiary (~~other~~ excluding any Excluded Indebtedness), (i) in the case of the incurrence of Indebtedness in the form of Additional Tower Notes, the proceeds thereof shall, as soon as such proceeds become available to the Issuer Entity, but in any event no later than the next Payment Date (as that term is defined in the Tower Notes Indenture) in respect of the Collection Period (as that term is defined in the Tower Notes Indenture) in which such Additional Tower Notes are issued, be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(e) in an amount equal to the lesser of (y) 100% of the aggregate face amount of such Additional Tower Notes, net of any ~~Indebtedness permitted~~ expenses reasonably incurred by the Issuers in connection with such issuance, or (z) if such proceeds are deposited into the Collection Account, the amount available to be ~~incurred by any~~ distributed to or at the direction of the Issuer Entity pursuant to clause Twentieth of Section 5.01(a) of the Tower Notes Indenture on such ~~Person~~ next Payment Date and (ii) in ~~accordance with Section 7.2), concurrently with, and as a condition to closing~~ the case of ~~such transaction~~the incurrence of all other Indebtedness, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.9(e). (b) ~~Subject~~ If any Capital Stock shall be issued by Holdings or any of its Subsidiaries (excluding Capital Stock issued to ~~clauses~~ CC Operating or any other Subsidiary of Holdings or otherwise issued by Holdings and contributed to CC Operating solely for the purpose of making an Investment permitted by Section 7.7(i)), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loan and the reduction of the Revolving Commitments as set forth in Section 2.9(e). (c) If on any date CC Operating or any Subsidiary shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless such proceeds are required to be applied to the redemption of the Tower Notes pursuant to the Tower Notes Indenture or a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(e); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 in any fiscal year of CC Operating and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(e). (d) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period~~fiscal year of CC Operating commencing with the fiscal year ending December 31, 2006, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply 50% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11,~~ 2.9(e); provided that ~~no such prepayment shall be made~~ if the Cash Trap Condition has occurred and is continuing, then only that portion of Excess Cash Flow ~~for any Excess Cash Flow Period~~ that is ~~less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess~~ distributed to CC Operating by the Subsidiaries shall be ~~subject~~ required to ~~prepayment~~be applied pursuant to this Section 2.9(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ CC Operating referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~applied~~ applied, first, to ~~the prepayment of~~ prepay the Term Loans ~~in accordance with Section 2.17(b). The application of~~ and, second, to reduce permanently the Revolving Commitments; provided that any ~~prepayment of Loans~~ prepayments and commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.9(c) shall be made on a pro rata basis ~~regardless~~ to the prepayment of ~~Type~~Terms Loans and to reduce permanently the Revolving Commitments. Any reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced; provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to Section 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.9 (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Crown Castle International Corp)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be ~~incurred~~ issued or Incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be incurred by any such Person~~ Incurred in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or ~~incurrence~~ Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d); provided, however, that if any such subordinated Indebtedness in an aggregate principal amount not to exceed $100,000,000 shall be issued or Incurred by the Borrower on terms and conditions (including, without limitation, terms of subordination) satisfactory to the Required Lenders, as evidenced by their prior written consent, which consent shall not be unreasonably withheld, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d). (b) Unless the Required Prepayment Lenders shall otherwise agree, if on any date, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d); provided that, notwithstanding the foregoing, (i) the Borrower may exclude from the requirements of this paragraph the first $7,500,000 of aggregate Net Cash Proceeds from Asset Sales and Recovery Events and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, the Borrower shall apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in ~~clause (g~~Section 2.10(d) on a date no later than five days after the earlier of ~~this Section 2.11. (b) Subject to clauses (d) and~~ (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.10 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Credit Commitments; provided that no Excess Cash Flow shall be applied to reduce the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Agent for the benefit of the Lenders on terms and conditions satisfactory to the Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.10 shall be made ~~on a pro rata basis regardless of Type~~first to ABR Loans and second to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.10 (except in the case of Revolving Credit Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Friendly Ice Cream Corp)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, subject to Section 2.18(d), if any ~~Indebtedness~~ Capital Stock shall be issued by Holdings or any of its Subsidiaries pursuant to a Qualified Offering or if any Funded Debt (excluding any Funded Debt incurred in accordance with Section 7.2 as in effect on the date of this Agreement) shall be incurred by ~~any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction~~the Borrower or its Subsidiaries, an amount equal to (i) in the case of Capital Stock issued pursuant to a Qualified Offering, 50% or (ii) in the case of Funded Debt, 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.12(d). (b) ~~Subject~~ Unless the Required Prepayment Lenders shall otherwise agree, subject to ~~clauses (d)~~ Section 2.18(d), if on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of ~~this~~ Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower, (ii) the aggregate Net Cash Proceeds of Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (iii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11~~2.12(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, subject to Section 2.18(d), if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending June 30, 2000, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower ~~Representative and to~~ shall or shall cause or the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shallapplicable Subsidiary to, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.12(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ ten days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) the date such financial statements are actually delivered. (d) Subject to Section 2.18, amounts to be applied in connection with ~~respect to all other Net Cash Proceeds not excluded~~ prepayments and Commitment reductions made pursuant to this Section 2.12 shall be applied, first, to the ~~preceding clause~~ prepayment of the Term Loans, second, to reduce permanently the Revolving Credit Commitments and, third, to the Borrower or such other Person as shall be lawfully entitled thereto. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of the Total Revolving Credit Commitments as so reduced (ibecause L/C Obligations constitute a portion thereof), the ~~greater of $5,000,000 and 1.6% of Consolidated EBITDA as~~ Borrower shall, to the extent of the ~~most recently ended Reference Period~~ balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in immediately available funds in a cash collateral account established with the Administrative Agent for ~~all such Net Cash Proceeds in any fiscal year, then, unless~~ the benefit of the Secured Parties on terms and conditions satisfactory to the Administrative Agent (and the Borrower ~~Representative has determined~~ hereby grants to the Administrative Agent, for the ratable benefit of the Administrative Agent and the Secured Parties, a continuing security interest in ~~good faith~~ all amounts at any time on deposit in such cash collateral account to secure all L/C Obligations from time to time outstanding and all other Obligations). If at any time the Administrative Agent determines that any funds held in such ~~Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate~~ cash collateral account are subject to any right or claim of any Person other than the Administrative Agent and the Secured Parties or that the total amount ~~equal to 100%~~ of such ~~Net Cash Proceeds shall be applied within five Business Days~~ funds is less than the amount of such ~~date~~ excess, the Borrower shall, forthwith upon demand by the Administrative Agent, pay to ~~prepay outstanding Term Loans~~ the Administrative Agent, as additional funds to be deposited and held in ~~accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date~~such cash collateral account, an amount equal to the ~~Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g).~~ excess of (da) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such ~~prepayment.~~ excess over (gb) ~~Amounts~~ the total amount of funds, if any, then held in such cash collateral account that the Administrative Agent determines to be ~~applied in connection with~~ free and clear of any ~~mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b)~~such right and claim. The application of any prepayment ~~of Loans~~ pursuant to Section 2.11 and this Section ~~2.11~~ 2.12 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 and this Section ~~2.11~~ 2.12 (except in the case of Revolving Credit Loans (unless the Revolving Credit Loans are being repaid in full and the Revolving Credit Commitments terminated) that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Osullivan Industries Holdings Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by Parent, Holdings or the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness permitted by Section 9.3 other than (i) Section 9.3(a) (to ~~be incurred by~~ the extent pertaining to any ~~such Person in accordance with Section 7.2~~refinancing, refund, replacement or renewal of Indebtedness pursuant to the Loan Documents), ~~concurrently with, and as a condition~~ (ii) Section 9.3(n)(i) (to ~~closing~~ the extent the Net Cash Proceeds of such ~~transaction~~Indebtedness are not applied by the Borrower to purchase Tranche B Term Loans pursuant to an Auction as set forth in Section 5.19) and (iii) subclauses (ii) and (iii) of 9.3(n)), then, on the date of such incurrence the Tranche B Term Loans shall be prepaid, by an amount equal to ~~100%~~ the IP Percentage (or as set forth in Section 9.3(n)(ii)) of the Net Cash Proceeds ~~thereof shall be applied on the date~~ of such ~~issuance or incurrence toward the prepayment of the Term Loans~~ incurrence, as set forth in ~~clause (g) of this~~ Section ~~2.11~~5.5(d). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for~~ If on any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ date the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any ~~Restricted Subsidiary~~ of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i)Event, the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds Loans shall be ~~reinvested in its business (a “Reinvestment Event”)~~prepaid, ~~an aggregate amount equal to 100%~~ on or before the date which is five days following the date of receipt of such Net Cash ~~Proceeds shall be applied within five Business Days~~ Proceeds, by an amount equal to the amount of such ~~date to prepay outstanding Term Loans~~ Net Cash Proceeds, as set forth in ~~accordance with this~~ Section ~~2.11~~5.5(d); provided that, notwithstanding the foregoing, no prepayment of the Loans shall be required to be made under this Section 5.5(b) in respect of (i) the Net Cash Proceeds received by the Borrower or any of its Subsidiaries from any Asset Sale or Recovery Event in respect of which a Reinvestment Notice has been delivered (or is delivered within 30 days), so long as, on each Reinvestment Prepayment Date, the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to ~~any~~ the relevant Asset Sale or Recovery Event, ~~shall be applied to prepay the outstanding Term Loans~~ as set forth in Section ~~2.11(g~~5.5(d) and (ii) RP Eligible Proceeds, to the extent such RP Eligible Proceeds are used within 90 days of the Disposition which is the source of such RP Eligible Proceeds to make a Restricted Payment permitted to be made under Section 9.6(h), in an aggregate amount not to exceed $300,000,000. (c) Subject to the last sentence of this paragraph, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2011, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date, the Tranche B Term Loans shall be prepaid by an amount equal to 50% of such Excess Cash Flow during such fiscal year as set forth in Section 5.5(d). Each such prepayment shall be made on July 15 of the following fiscal year, beginning on July 15, 2012 (an “Excess Cash Flow Application Date”). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section ~~2.11~~ shall be ~~applied~~ applied, first, to the prepayment of the Tranche B Term Loans, second, after the Tranche B Term Loans have been prepaid in ~~accordance with Section 2.17(b~~full, to prepay the Revolving Credit Loans and/or Swing Line Loans pro rata according to the respective Pro Rata Share of the relevant Lender (in each case without any corresponding reduction of the Commitments hereunder), third, to the prepayment of outstanding loans under the Second Lien Credit Agreement and fourth, to cash collateralize outstanding Letters of Credit. The application of any prepayment of Loans under any Facility pursuant to this Section ~~2.11~~ shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans under such Facility and, second, to Eurocurrency Loans under such Facility. Each prepayment of the Loans under this Section ~~2.11~~ (except in the case of Revolving Credit Loans ~~that are ABR Loans (to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid~~. (h)~~ . Pending the final application of Net Cash Proceeds, the Borrower may temporarily prepay outstanding Revolving Credit Loans and/or Swing Line Loans or otherwise make Permitted Investments. Notwithstanding any of the other ~~provision~~ provisions of this Section ~~2.11~~5.5, so long as no Event of Default shall have occurred and be continuing, if any prepayment of Eurocurrency Loans is required to be made under this Section ~~2.11 other than on~~ 5.5 prior to the last day of the Interest Period ~~applicable thereto~~therefor and less than three months are remaining in such Interest Period, in lieu of making any payment pursuant to this Section 5.5 in respect of any such Eurocurrency Loan prior to the last day of the Interest Period therefor, the ~~applicable~~ Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made ~~thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to~~ into a cash collateral ~~agreement to be entered into on terms reasonably satisfactory to~~ account maintained with the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from ~~any~~ the Borrower or any other Loan Party) to apply such amount to the prepayment of such ~~Eurocurrency~~ Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid5.5. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from ~~any~~ the Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the ~~terms hereof), unless such application would result in the holders~~ relevant provisions of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)this Section 5.5.

Appears in 1 contract

Sources: First Lien Credit Agreement (Six Flags Entertainment Corp)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2), concurrently with,~~ 7.2 and ~~as a condition to closing~~ the Net Cash Proceeds received by the Borrower from the exercise of ~~such transaction,~~ stock options) an amount equal to 100% of the Net Cash Proceeds ~~thereof~~ in respect of the issuance of such Capital Stock and the incurrence of such Indebtedness, in each case, shall be applied on the date of such issuance or incurrence toward the prepayment of the ~~Term~~ Revolving Loans ~~as set forth in clause (g) of this Section 2.11~~to the extent Revolving Loans are then outstanding. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date toward the prepayment of the Revolving Loans to ~~prepay outstanding Term~~ the extent Revolving Loans ~~in accordance with this Section 2.11~~are then outstanding; ~~provided~~ provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied toward the prepayment of the Revolving Loans to ~~prepay~~ the ~~outstanding Term~~ extent Revolving Loans ~~as set forth in Section 2.11(g)~~are then outstanding. (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 2.6 shall be applied to the prepayment of the ~~Term Loans in accordance with Section 2.17(b)~~Revolving Loans. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to LIBOR Loans. Each prepayment of the Revolving Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Labor Ready Inc)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock shall, subsequent to the Closing Date, be issued by Holdings, the Company or any of its Subsidiaries (excluding any issuance of Capital Stock (x) to management of Holdings, the Company or a subsidiary (including in connection with the exercise of stock options) or (y) pursuant to Section 7.5(e) or (z) where the Net Cash Proceeds thereof do not exceed $1,000,000 in any fiscal year), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence (or within two days after such date if the provisions of the succeeding paragraph (d) are complied with) toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(f); provided that, solely for the purpose of replacing an equivalent portion of Capital Stock of Holdings on the Closing Date, Holdings shall be entitled to issue, without any application of any Net Cash Proceeds thereof under this Section 2.12, on terms and conditions and with holders reasonably satisfactory to the Administrative Agent, on or prior to the date six months after the Closing Date, up to $50,000,000 in Net Cash Proceeds of mezzanine financing (the "Holdings Mezzanine Financing"). (b) Unless the Required Prepayment Lenders shall otherwise agree, if, subsequent to the Closing Date, any Indebtedness ~~shall be~~ is incurred by Holdings, the Company or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence (or within two days after such date if the provisions of the succeeding paragraph (d) are complied with) toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(f). (c) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date (or within two days after such date if the provisions of the succeeding paragraph (d) are complied with) toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(f); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $50,000,000 in any fiscal year of the Company, (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(f) and (iii) the aggregate of all Reinvestment Deferred Amounts not applied toward one such prepayment or reduction shall not at any one time exceed $50,000,000. (d) Provided that the Borrowers deposit the proceeds received by them pursuant to the circumstances giving rise to the requirement to make a prepayment pursuant to any of the preceding paragraphs (a), (b) or (c) with the Administrative Agent, for the benefit of the Lenders, in a cash collateral account, the Borrowers may have until the second succeeding day following the receipt of such proceeds to make the prepayment required by any such paragraph. The Borrowers hereby grant to the Administrative Agent, for the benefit of the Lenders, a security interest in all amounts from time to time on deposit in such cash collateral account and expressly waive all rights (which rights the Borrowers hereby acknowledge and agree are vested exclusively in the Administrative Agent) to exercise dominion or control over any such amounts. (e) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Company, commencing with the fiscal year ending September 30, 1999, there shall be Excess Cash Flow, the Borrowers shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.12(f). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Company referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excessactually delivered. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.12 shall be ~~applied~~ applied, first (in all cases), to the pro rata prepayment of the Term Loans and, second (in ~~accordance~~ the cases of paragraphs (a), (b) and (c)), to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.12 shall be made ~~on a pro rata basis regardless of Type~~first to Base Rate Loans and second to Eurocurrency Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.12 (except in the case of Revolving Credit Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hg) ~~Notwithstanding any~~ If, as a result of the ~~other provision~~ making of ~~this Section 2.11, if~~ any ~~prepayment of Eurocurrency Loans is~~ payment required to be made ~~under this~~ pursuant to Section ~~2.11 other than on the last day of the Interest Period applicable thereto~~2.12, the ~~applicable Borrower may~~Borrowers would be required to indemnify any Lender pursuant to Section 2.21, ~~in its sole discretion,~~ the Borrowers may deposit the amount of ~~any~~ such ~~prepayment otherwise required to be made thereunder~~ payment with the Administrative Agent, ~~to be held as security~~ for the ~~obligations~~ benefit of the Lenders, in a cash collateral account, until the end of the applicable ~~Borrower to make~~ Interest Period at which time such ~~prepayment pursuant to a cash collateral agreement to~~ payment shall be ~~entered into on terms reasonably satisfactory~~ made. The Borrowers hereby grant to the Administrative ~~Agent until~~ Agent, for the ~~last day~~ benefit of the Lenders, a security interest in all amounts from time to time on deposit in such ~~Interest Period, at~~ cash collateral account and expressly waive all rights (which ~~time~~ rights the Borrowers hereby acknowledge and agree are vested exclusively in the Administrative ~~Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party~~Agent) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by exercise dominion or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of over any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)amounts.

Appears in 1 contract

Sources: Credit Agreement (Grove Investors Capital Inc)

Mandatory Prepayments and Commitment Reductions. (a) If the Borrower or any ~~Indebtedness~~ Subsidiary shall ~~be incurred by~~ issue any ~~Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction~~Capital Stock, an amount equal to 100% of the Net Cash Proceeds thereof (other than (i) the Net Cash Proceeds in an aggregate amount not to exceed -36- $25,000,000 of the issuance of preferred stock of the Borrower having a cash pay dividend of up to 8% and upon which no cash dividends may be declared or paid during the Existence of a Default or Event of Default hereunder, and (ii) Net Cash Proceeds in an aggregate amount not to exceed $50,000,000 of the issuance of common stock of the Borrower or options, warrants or rights with respect to such common stock of the Borrower upon which no cash dividends may be declared or paid during the Existence of a Default or Event of Default hereunder) shall be applied on the date of such issuance ~~or incurrence~~ toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of~~ Section 2.12(d); provided that nothing contained in this Section ~~2.11~~2.12(a) shall obligate the SPV to make any prepayment of any Loans under this Agreement nor shall contributions to the capital of the SPV in the form of Receivables be deemed to generate Net Cash Proceeds. The Lenders hereby agree that this Section 2.12(a) shall not apply to the issuance of Capital Stock of the Borrower to the holders of the Borrower's Senior Subordinated Notes pursuant to the Plan of Reorganization. (b) ~~Subject to clauses (d)~~ If the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, the Mandatory Prepayment Percentage of such Net Cash Proceeds shall be promptly applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(d); provided, that, notwithstanding the foregoing: (i) net insurance proceeds received by the Collateral Agent shall be made available for the restoration of the portion of the Collateral damaged or destroyed if written application for such use is made within thirty (30) days of receipt of such proceeds and the following conditions are satisfied: (A) the Borrower has in effect business interruption insurance covering the income to be lost during the restoration period as a result of the damage or destruction to the Collateral or provides the Administrative Agent with other evidence satisfactory to it that the Borrower has cash resources sufficient to pay its obligations during the restoration period; (B) the effect of the damage to or destruction of the Collateral giving rise to receipt of the insurance proceeds is not to terminate, or give a lessee the option to terminate, any lease of all or any portion of the Mortgaged Premises; (C) no Event of Default or Default shall have occurred or be continuing (and if such an event shall occur during restoration the Administrative Agent may, at its election, apply any insurance proceeds then remaining in its hands to the reduction of the Obligations); (D) the Borrower shall have submitted to the Administrative Agent plans and specifications for the restoration which shall be satisfactory to it; (E) the Borrower shall submit to the Administrative Agent fixed price contracts with good and responsible contractors and materialmen covering all work and materials necessary to complete restoration and providing for a total completion price not in excess of the amount of insurance proceeds available for restoration, or, if a deficiency shall exist, the Borrower shall have deposited the amount of such deficiency with the Administrative Agent; and (F) the Borrower shall have obtained a waiver of the right of subrogation from any insurer under such policies of insurance who at that time claims that no liability exists as to the Borrower or the insured under such policies. Any insurance proceeds to be released pursuant to the foregoing provisions may at the option of the Administrative Agent be disbursed from time to time as restoration progresses to pay for restoration work completed and in place and such disbursements may at the Administrative Agent's option be made directly to the Borrower or to or through any contractor or materialman to whom payment is due or to or through a construction escrow to be maintained by a title insurer acceptable to the Administrative Agent. The Administrative Agent may impose such further conditions upon the release of insurance proceeds (including the receipt of title insurance) as are customarily imposed by prudent construction lenders to insure the completion of the restoration work free and clear of all liens or claims for lien. All title insurance charges and other costs and expenses paid to or for the account of the Borrower in connection with the release of such insurance proceeds shall constitute so much additional Obligations to be payable upon demand with interest at the rate applicable to Revolving Credit Loans that are Base Rate Loans at the time such costs or expenses are incurred. The Administrative Agent may deduct any such costs and expenses from insurance proceeds at any time standing in its hands. If the Borrower fails to request that insurance proceeds be applied to the restoration of the improvements or if the Borrower makes such a request but fails to complete restoration within a reasonable time, the Administrative Agent shall have the right, but not the duty, to restore or rebuild said Collateral or any part thereof for or on behalf of the Borrower in lieu of applying said proceeds to the Obligations and for such purpose may do all necessary acts, including using funds deposited by the Borrower as aforesaid and advancing additional funds for the purpose of restoration, all such additional funds to constitute part of the Obligations payable upon demand with interest at the rate applicable to Revolving Credit Loans that are Base Rate Loans at the time of incurrence; (ii) the proceeds from any sales of Receivables pursuant to the Receivables Securitization Program shall be used for working capital purposes, operational purposes and other general corporate purposes; and (iii) proceeds in an aggregate amount of less than $1,000,000 may be held by the Administrative Agent until the aggregate amount of such proceeds equals or exceeds $1,000,000 and then applied as provided herein. Any proceeds held by the Administrative Agent pursuant to this ~~Section 2.11~~clause (iii) shall be invested in mutually acceptable investments, ifwhich shall be part of the Collateral and, so long as no Default or Event of Default shall have occurred and be continuing, the investment earnings thereon shall be made available to the Borrower at its request. (c) If, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending September 30, 2001, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply 85% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.12(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a) or (b), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant All amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ 2.12 shall be applied to the prepayment of the Term Loans (in the order set forth in Section 2.18(b)) and to the permanent reduction of the Revolving Credit Commitments ratably in accordance with ~~Section 2.17(b~~the outstanding principal amount of the Term Loans and the amount of the Total Revolving Credit Commitments, determined without regard to any outstanding Revolving Extensions of Credit. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or the Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.12 shall be made ~~on a pro rata basis regardless of Type~~first to Base Rate Loans and second to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.12 (except in the case of Revolving Credit Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence prepaid and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans owing pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)2.21.

Appears in 1 contract

Sources: Restructuring Credit Agreement (Imperial Sugar Co /New/)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2), concurrently with,~~ 8.2 and ~~as a condition to closing~~ the Net Cash Proceeds received by the Borrower from the exercise of ~~such transaction,~~ stock options) an amount equal to 100% of the Net Cash Proceeds ~~thereof~~ in respect of the issuance of such Capital Stock and the incurrence of such Indebtedness, in each case, shall be applied on the date of such issuance or incurrence toward the prepayment of the ~~Term~~ Revolving Loans ~~as set forth in clause (g) of this Section 2.11~~to the extent Revolving Loans are then outstanding. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date toward the prepayment of the Revolving Loans to ~~prepay outstanding Term~~ the extent Revolving Loans ~~in accordance with this Section 2.11~~are then outstanding; ~~provided~~ provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied toward the prepayment of the Revolving Loans to ~~prepay~~ the ~~outstanding Term~~ extent Revolving Loans ~~as set forth in Section 2.11(g)~~are then outstanding. (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 2.6 shall be applied to the prepayment of the ~~Term Loans in accordance with Section 2.17(b)~~Revolving Loans. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.7 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to LIBOR Loans. Each prepayment of the Revolving Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.7 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (TrueBlue, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If Upon receipt by the Borrower or any of its Subsidiaries of any Net Proceeds in connection with the incurrence of any Indebtedness ~~shall be incurred~~ by ~~any Group Member~~ the Borrower or such Subsidiary (other than ~~any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2~~Excepted Indebtedness), ~~concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied~~ then on the ~~date of~~ first Business Day after such ~~issuance or incurrence toward~~ incurrence, the ~~prepayment of~~ Borrower shall prepay the Term Loans as ~~set forth~~ provided for herein in ~~clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow,~~ an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)Proceeds. (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (~~b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be Any prepayment required ~~to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained~~ by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period terms of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 subsection 2.15 shall be applied to the prepayment of the Term Loans until the Term Loans shall have been satisfied in ~~accordance with Section 2.17(b)~~full. ~~The application of any prepayment of Loans pursuant to this Section 2.11 shall be made~~ Amounts prepaid on ~~a pro rata basis regardless of Type. Each prepayment~~ account of the Term Loans ~~under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are~~ may not ~~being prepaid) and Swingline Loans) shall~~ be ~~accompanied by accrued interest to the date of such prepayment on the amount prepaid~~reborrowed. (hc) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory Each prepayment of the Term Loans pursuant to ~~Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder~~ this subsection 2.15 shall be ~~reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied~~ accompanied by payment in full of all accrued interest thereon to ~~Other Applicable Indebtedness only to (~~and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after including the date of such ~~rejection~~prepayment, together with any additional amounts owing pursuant to subsection 2.26. (d) If at any time the Aggregate Outstanding Revolving Extensions of Credit of all the Revolving Credit Lenders shall exceed the Aggregate Revolving Credit Commitments by as much as $5,000,000 (by virtue of any change in the exchange rate of any Foreign Currency in which a Revolving Credit Loan or a Letter of Credit is denominated or otherwise), the Borrower shall immediately prepay the Revolving Credit Loans and/or cash collateralize the then outstanding L/C Obligations by an amount equal to such excess within three Business Days. Any such cash collateralization of L/C Obligations shall be ~~applied to prepay Term Loans~~ accomplished in ~~accordance with~~ the ~~terms hereof (to~~ manner contemplated in the ~~extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)~~penultimate paragraph of Section 8 concerning the acceleration of the obligations hereunder.

Appears in 1 contract

Sources: Credit Agreement (Sybron International Corp)

Mandatory Prepayments and Commitment Reductions. (a) If the Borrower or any of its Subsidiaries (or Holdings on behalf of the Borrower or any of its Subsidiaries) shall receive Net Cash Proceeds (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) from any: (i) Asset Sale, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Recovery Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments to the extent contemplated by Section 6.20, the Depositary Agreement and as set forth in Section 2.9(d). (ii) Recovery Event, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Recovery Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments to the extent contemplated by Section 6.18, the Depositary Agreement and as set forth in Section 2.9(d). 41 ▇▇▇▇▇ Wind – Credit Agreement (b) If any Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence ~~toward~~ to the prepayment of Loans in the ~~Term Loans~~ inverse order of maturity and reduction of Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11. (b) Subject to clauses (d~~2.9(d) and ~~(i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii)~~ in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) accordance with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the LendersDepositary Agreement. (c) ~~Subject to clauses~~ The Borrower shall, on each Semi-Annual Payment Date (~~d) and~~ each, a “Sweep Date”), commencing on June 28, 2019: (i) ~~of this Section 2.11~~first, ~~if,~~ prepay the Term Loans outstanding on ~~any date, UK Holdco or any Restricted Subsidiary shall receive Net~~ such Semi-Annual Payment Date with Excess Cash ~~Proceeds from any Asset Sale or any Recovery Event in excess of (i)~~ Flow to prepay the ~~greater of $2,000,000 and 0.7% of Consolidated EBITDA as~~ outstanding principal amount of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in ~~accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date,~~ an amount equal to the ~~Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay~~ lesser of (A) the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing amount necessary to cause the ~~applicable Subsidiary or branch~~ outstanding principal amount of the Term Loans to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt equal the Target Debt Balance as of such ~~Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause~~ Semi-Annual Payment Date and (iiB) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation [***]% of the amount of Excess Cash Flow (any Excess Cash Flow remaining as of such ~~prepayment~~Semi-Annual Payment Date after giving effect to the prepayments in this clause (i) is referred to as “Remaining Excess Cash Flow”); and (ii) second, (A) prepay the outstanding principal amount of the Term Loans with Remaining Excess Cash Flow in an amount equal to [***]% of Remaining Excess Cash Flow as of such Semi-Annual Payment Date and (B) the remaining portion of such Remaining Excess Cash Flow shall be applied, subject to Section 7.6(b), as a Restricted Payment to the Sponsor (or its designee) or otherwise in accordance with the Depositary Agreement. (gi) Amounts to be applied in connection with ~~any mandatory~~ prepayments of Loans and reductions of Commitments made pursuant to ~~this Section 2.11~~ paragraphs (a) through (c) above shall be applied without penalty or premium (except for breakage costs, if any) as follows: (A) first, simultaneously to ~~the prepayment of~~ prepay the Term Loans in accordance with Section ~~2.17(b~~2.15(b) and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.9; (B) second, to repay the Revolving Loans in accordance with Section 2.15(c); (C) third, to ratably Cash Collateralize any outstanding Letters of Credit; and (D) fourth, any amount remaining may be retained by the Borrower; provided that all of the Revolving Commitments shall have been terminated in accordance with Section 2.15(c). 42 ▇▇▇▇▇ Wind – Credit Agreement (ii) The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type.~~ made, first, to ABR Loans and, second, to Eurodollar Loans. (iii) Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (REV Renewables, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If after the Closing Date any Capital Stock shall be sold or issued by Holdings, the Company or any of its Subsidiaries (including, without limitation, any sales pursuant to the exercise of warrants, but excluding (i) any issuance of common stock in payment of interest under the Seller Note and (ii) any Permitted Employee Stock Issuances, to the extent the proceeds of such Permitted Employee Stock Issuances are contributed by Holdings to the Company), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied within three Business Days after the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans and Acceptances and the reduction of the Revolving Credit Commitments as set forth in Section 6.3(e). (b) If after the Closing Date any Indebtedness shall be issued or incurred by Holdings, the Company or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~10.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within three Business Days after the date of such issuance or incurrence toward the prepayment of the Term Loans and the Acceptances and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~6.3(e). (bc) ~~Subject to clauses~~ If after the Closing Date the Company or any of its Subsidiaries (dother than the Canadian Borrower or any of its Subsidiaries) ~~and (i) of this Section 2.11, if, for~~ shall receive Net Cash Proceeds from any ~~Excess Cash Flow Period, there shall be Excess Cash Flow~~Asset Sale or Recovery Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 6.3(f). If after the Closing Date the Canadian Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Total Aggregate Canadian Term Loan Outstandings and the permanent reduction of the Canadian Facility Maximum Amount as set forth in Section 6.3(g). Notwithstanding the foregoing, (i) no such prepayment or reduction shall be required in respect of Asset Sales for which the ~~ECF Percentage for such period of such Excess~~ Net Cash ~~Flow over~~ Proceeds in any fiscal year aggregate up to $2,000,000 and (ii) ~~in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (~~no such prepayment or ~~a comparable caption) under GAAP (other than Indebtedness~~ reduction shall be required in respect of any ~~revolving credit facility~~Asset Sales (other than those described in the foregoing clause (i)) or ~~(y)~~ any Recovery Event if the ~~proceeds~~ Company delivers a Reinvestment Notice in respect of ~~Permitted Cure Securities applied pursuant to Section 9.4~~each such Asset Sale and Recovery Event; provided, ~~the aggregate~~ that, on each Reinvestment Prepayment Date, an amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only equal to the ~~extent of a concurrent~~ Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayments and ~~permanent reduction in the Revolving Commitments~~reductions required by Section 6.3 (f) or 6.3 (g), as applicable. (3d) ~~optional prepayments~~If, ~~purchases and redemptions and buybacks (with credit given to the par value~~ for any fiscal year of ~~the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies)~~ Holdings commencing with the ~~Lien securing the Obligations (but~~fiscal year ending August 31, ~~in the case of revolving indebtedness~~1998, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Holdings shall have Excess Cash Flow ~~Period~~ (~~provided~~calculated without taking into account the Canadian Borrower and its Subsidiaries), ~~however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for~~ the ~~subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date,~~ Company shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply 75% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g)~~ Section 6.3(f). If, for any fiscal year of ~~this Section 2.11~~the Canadian Borrower commencing with the fiscal year ending August 31, ~~provided that no such prepayment~~ 1998, the Canadian Borrower shall ~~be made if~~ have Excess Cash Flow, the Canadian Borrower shall, on the relevant Excess Cash Flow ~~for any~~ Application Date, apply 75% of such Excess Cash Flow ~~Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment~~toward the prepayment of the Total Aggregate Canadian Term Loan Outstandings and the permanent reduction of the Canadian Facility Maximum Amount as set forth in Section 6.3(g). Each such prepayment and reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ Holdings referred to in Section ~~6.1(a~~9.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding financial statements are actually delivered. Notwithstanding the foregoing, ~~on each Reinvestment Prepayment Date, an amount equal to~~ if for any fiscal year the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow ~~attributable to Subsidiaries (or branches~~ of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties one of the ~~relevant directors~~Canadian Borrower or Holdings (calculated without taking into account the Canadian Borrower and its Subsidiaries), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, is a negative number, and the Excess Cash Flow of the other such ~~distribution will be promptly effected~~ Person is a positive number, the amount of the prepayment and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to reduction required by this Section ~~2.11~~6.3(d) in respect of the Company (if Holdings is the Person having positive Excess Cash Flow) or the Canadian Borrower (if the Canadian Borrower is the Person having positive Excess Cash Flow) for such fiscal year shall be reduced by the amount of the negative Excess Cash Flow of the other such Person for such fiscal year. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 6.3(a) or 6.3(b) shall be ~~applied~~ applied, first, to the prepayment of the U.S. Term Loans and Total Aggregate Canadian Term Loan Outstandings, ratably in accordance with ~~Section 2.17(b~~the outstanding amount of each Facility and, second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the aggregate Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Company shall not be required to reduce any outstanding Letters of Credit. The application of any such prepayment of U.S. Term Loans ~~pursuant to this Section 2.11~~ shall be made first to Base Rate Loans and second to LIBOR Loans. The application of any such prepayment to Total Aggregate Canadian Term Loan Outstandings shall be made first to Canadian Term Loans and second (but only on ~~a pro rata basis regardless of Type~~the maturity date thereof) to Acceptances. Each such prepayment of the Loans ~~under this Section 2.11~~ (except in the case of Revolving Credit Loans that are ~~ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) ~~Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required~~ Amounts to be applied in connection with prepayments and reductions made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to ~~a cash collateral agreement to be entered into on terms reasonably satisfactory to~~ the ~~Administrative Agent until~~ first sentence of Section 6.3(c) or the ~~last day~~ first sentence of ~~such Interest Period, at which time the Administrative Agent~~ Section 6.3(d) shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Defaultapplied, ~~the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount~~ first, to the prepayment of the ~~applicable Eurocurrency~~ U.S. Term Loans ~~in accordance with this Section 2.11 (determined as~~ and, second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans Revolving Credit Commitments shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured accompanied by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the ~~Term~~ Revolving Credit Loans ~~pursuant~~ to ~~Section 2.11(b) and/or~~ the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the aggregate Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (cbecause L/C Obligations constitute a portion thereof), ~~and~~ the ~~amount~~ Company shall not be required to reduce any outstanding Letters of Credit. The application of any such prepayment ~~required to~~ of U.S. Term Loans shall be made ~~hereunder~~ first to Base Rate Loans and second to LIBOR Loans. Each such prepayment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be ~~reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied~~ accompanied by accrued interest to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such ~~rejection~~prepayment on the amount prepaid. (g) Amounts to be applied in connection with prepayments and reductions made pursuant to the second sentence of Section 6.3(c) or the second sentence of Section 6.3(d) shall be applied to ~~prepay~~ the reduction of the Total Aggregate Canadian Term ~~Loans~~ Loan Outstandings and the simultaneous and automatic reduction in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)an equal amount of the

Appears in 1 contract

Sources: Credit Agreement (Laidlaw Environmental Services Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be issued or incurred by any ~~Group Member~~ Loan Party (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~5.1)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and then to the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(c). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for~~ If any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary Loan Party shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to~~ 100% of such Net Cash Proceeds shall be ~~applied~~ paid to the Administrative Agent within ~~five~~ three Business Days after such Loan Party’s receipt of such ~~date to prepay outstanding~~ Net Cash Proceeds and applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.11(c); ~~provided~~ provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be paid to the Administrative Agent and applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.11(g~~2.11(c). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section 2.11 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans ~~in accordance with Section 2.17(b)~~and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the total Revolving Credit Exposure exceeds the amount of the Total Revolving Commitments as so reduced. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section 2.11 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to LIBOR Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment Mandatory prepayments of the Term Loans pursuant to this Section ~~2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder~~ 2.11 shall ~~be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may~~ be applied to ~~Other Applicable Indebtedness only to (and not~~ the remaining installments thereof in ~~excess of) the extent to which a mandatory prepayment in respect~~ inverse order of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)maturity.

Appears in 1 contract

Sources: Credit Agreement (Enovation Controls, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If Unless, with respect to the Term Loans or the U.S. Revolving Credit Facility, the U.S. Required Prepayment Lenders or, with respect to the Canadian Facility, the Canadian Lender shall otherwise agree, if any Capital Stock or Indebtedness shall be issued or incurred by NSP or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding (x) any Capital Stock issued pursuant to the exercise of stock options held by an employee of Holdco or any of its Subsidiaries or any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement and (y) any Capital Stock issued by NSP the Net Cash Proceeds of which are used promptly after the receipt thereof to pay all or a portion of the purchase price of a Permitted Acquisition)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to (i) in the case of issuance of any Capital Stock, 50% of the Net Cash Proceeds thereof and (ii) in the case of incurrence of any Indebtedness, 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term ~~Loans~~ Loans, the reduction of the U.S. Revolving Commitments and the reduction of the Canadian Commitment as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.9(d). (b) ~~Subject~~ Unless, with respect to ~~clauses (d)~~ the Term Loans or the U.S. Revolving Credit Facility, the U.S. Required Prepayment Lenders or, with respect to the Canadian Facility, the Canadian Lender, shall otherwise agree, if on any date NSP or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans, the reduction of the U.S. Revolving Commitments and the reduction of the Canadian Commitment as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of ~~this~~ Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of NSP and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans, the reduction of the U.S. Revolving Commitments and the Canadian Commitment as set forth in Section ~~2.11~~2.9(d). (c) Unless, ifwith respect to the Term Loans or the U.S. Revolving Credit Facility, the U.S. Required Prepayment Lenders or, with respect to the Canadian Facility, the Canadian Lender, shall otherwise agree, if for any ~~Excess Cash Flow Period~~fiscal year of NSP, commencing with the fiscal year ending December 31, 2003, there shall be Excess Cash Flow, ~~an amount equal to (i)~~ the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, Borrowers shall, on the relevant Excess Cash Flow Application ~~Date~~Date (as defined below), ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term ~~Loans~~ Loans, the reduction of the U.S. Revolving Commitments and the reduction of the Canadian Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.9(d). Each such prepayment and commitment reduction shall be made on a date (an ~~“Excess Cash Flow Application Date”~~"EXCESS CASH FLOW APPLICATION DATE") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ NSP referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) ~~Notwithstanding anything~~ Unless otherwise agreed by the U.S. Required Prepayment Lenders or the Canadian Lender, as the case may be, amounts to ~~the contrary~~ be applied in ~~this Agreement (including clauses (b~~connection with prepayments and Commitment reductions made pursuant to Section 2.9(a) ~~and (c~~or 2.9(c) ~~above)~~shall be applied, first, to the ~~extent that~~ prepayment of the ~~Borrower Representative has determined~~ Term Loans and, second, to reduce permanently on a pro rata basis, the U.S. Revolving Commitments and the Canadian Commitment. Unless otherwise agreed by the U.S. Required Prepayment Lenders or the Canadian Lender, as the case may be, amounts to be applied in ~~good faith that~~ connection with prepayments and Commitment reductions made pursuant to Section 2.9(b) shall be applied (i) ~~any of or all the Net Cash Proceeds of~~ if related to any Asset Sale or Recovery Event by ~~a Subsidiary~~ NSP or ~~Excess Cash Flow attributable to~~ any of its Subsidiaries (other than the Canadian Borrower or ~~branches~~ any of its Subsidiaries~~) are prohibited or delayed by applicable local law from being repatriated~~ ), first, to the ~~relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties~~ prepayment of the ~~relevant directors)~~Term Loans, second, to reduce permanently the U.S. Revolving Commitments and, third, to reduce permanently the Canadian Commitment and (ii) ~~such repatriation would present a material risk~~ if related to any Asset Sale or Recovery Event by the Canadian Borrower or any of ~~liability for the applicable Subsidiary or~~ its ~~directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign~~ Subsidiaries, to reduce permanently the Canadian Commitment. Any such ~~repatriation or any distribution~~ reduction of the ~~relevant amounts would reasonably~~ U.S. Revolving Commitments or the Canadian Commitment shall be ~~expected to result in material adverse Tax consequences,~~ accompanied by prepayment of the ~~portion of such Net Cash Proceeds~~ U.S. Revolving Loans and/or U.S. Swingline Loans or ~~Excess Cash Flow so affected will not be required to be applied to repay Loans at~~ the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distributionCanadian Loans, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the ~~repayment~~ extent, if any, that the Total U.S. Revolving Extensions of ~~Term Loans pursuant~~ Credit exceed the amount of the Total U.S. Revolving Commitments as so reduced or to ~~this Section 2.11. (e) In~~ the ~~event~~ extent, if any, that the Canadian Extensions of Credit exceed the amount of the Canadian Commitment, as the case may be, PROVIDED that if the aggregate ~~Outstanding Amount~~ principal amount of U.S. Revolving ~~Loans,~~ Loans and U.S. Swingline Loans then outstanding is less than the amount of such excess (because U.S. L/C Obligations ~~and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect~~constitute a portion thereof), the ~~Revolving~~ U.S. Borrowers ~~shall immediately (or~~shall, if to the extent of the balance of such ~~Revolving Excess results solely from a Recalculation~~excess, ~~within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize~~ replace outstanding U.S. Letters of Credit ~~to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to~~ and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent ~~notice, substantially in~~ for the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer benefit of the ~~Borrower Representative (~~U.S. Lenders on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) terms and conditions satisfactory to the Administrative Agent and PROVIDED FURTHER that if the ~~Borrower Representative no later~~ aggregate principal amount of Canadian Loans (other than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of Bankers' Acceptances) then outstanding is less than the amount of such ~~prepayment.~~ excess (~~g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied~~ because Canadian L/C Obligations and/or Bankers' Acceptances constitute a portion thereof), the Canadian Borrower shall, to the ~~prepayment~~ extent of the ~~Term Loans~~ balance of such excess, replace outstanding Canadian Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Canadian Lender on terms and conditions satisfactory to the Canadian Lender. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type~~made, FIRST, to ABR Loans and, SECOND, to Eurodollar Loans in such manner as to minimize break funding costs set forth in Section 2.18. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.9 (except in the case of U.S. Revolving Loans that are ABR Loans, U.S. Swingline Loans ~~(to the extent all Revolving~~ or Canadian Loans that are ~~not being prepaid) and Swingline~~ C$ Prime Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) ~~Notwithstanding any of~~ Unless on or before February 1, 2005 the ~~other provision of this Section 2.11~~Senior Subordinated Notes shall have been refinanced, ~~if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than~~ or the maturity thereof extended, on terms and conditions approved in writing by the ~~last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with~~ Syndication Agent and the Administrative Agent, ~~to be held as security for~~ including by extending the ~~obligations~~ maturity thereof so that no part of the ~~applicable Borrower~~ principal thereof shall be scheduled to ~~make such prepayment pursuant to a cash collateral agreement to be entered into~~ mature on ~~terms reasonably satisfactory~~ or before September 30, 2009, on February 1, 2005, the U.S. Revolving Commitments and the Canadian Revolving Commitments shall automatically terminate and all U.S. Loans (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c)Borrowers, and the face amount of ~~any such prepayment required to be made hereunder~~ all Bankers' Acceptances accepted by the Canadian Lender) shall be ~~reduced accordingly~~due and payable forthwith. ~~Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of)~~ Furthermore, the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis provisions of the ~~aggregate Outstanding Amount~~ last two paragraphs of ~~Term Loans~~ Section 8 shall be applicable to all then outstanding Letters of Credit and ~~Other Applicable Indebtedness at~~ Bankers' Acceptances as fully as if an acceleration had occurred on such ~~time) of such Net Cash Proceeds relative~~ date pursuant to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)said Section.

Appears in 1 contract

Sources: Credit Agreement (Norcross Capital Corp)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Majority Facility Lenders with respect to each Facility shall otherwise agree, if any ~~Indebtedness~~ Capital Stock shall be ~~incurred by any Group Member~~ issued (other than (i) as consideration, or to the extent issued for cash to be used exclusively for consideration, for an acquisition permitted by Section 7.8(h) and (ii) to directors and employees of, and consultants to, the Borrower and its Subsidiaries in connection with their exercise of stock options), or Indebtedness incurred, by the Borrower or any of its Subsidiaries (excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 50%, in the case of Capital Stock, or 100% %, in the case of Indebtedness of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.12(c). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i)~~ Unless the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year Majority Facility Lenders with respect to ~~which such prepayment is made~~each Facility shall otherwise agree, ~~are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if,~~ if on any ~~date, UK Holdco~~ date the Borrower or any ~~Restricted Subsidiary~~ of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.12(c); ~~provided~~ provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $3,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11(g~~2.12(c). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.12 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.12 shall be made ~~on a pro rata basis regardless of Type~~first to Base Rate Loans and second to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.12 (except in the case of Revolving Credit Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hd) ~~Notwithstanding~~ In lieu of making any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made ~~thereunder~~ pursuant to Section 2.12(a) in respect of any Eurodollar Loan on a day that is not the last day of an Interest Period then in effect with respect to such Eurodollar Loan, the Borrower at its option may, so long as no Default or Event of Default shall have occurred and be continuing, deposit with the Administrative ~~Agent,~~ Agent an amount equal to the amount of such Eurodollar Loan to be prepaid, and such Eurodollar Loan shall not be prepaid until the last day of such Interest Period in the required amount (other than as provided for in the last sentence of this Section 2.12(d)). Such deposit shall be held ~~as security for~~ by the ~~obligations of the applicable Borrower to make such prepayment pursuant to~~ Administrative Agent in a ~~cash collateral agreement to be entered into~~ corporate time deposit account established on terms reasonably satisfactory to the Administrative ~~Agent until~~ Agent, earning interest (for the ~~last day~~ account of the Borrower) at the then customary rate for accounts of such ~~Interest Period~~type. Such deposit shall cash collateralize the Obligations, provided, however, that the Borrower may at ~~which~~ any time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided direct that such ~~unpaid Eurocurrency Loans shall continue~~ deposit be applied to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of make the applicable ~~Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such~~ prepayment ~~was~~ required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section ~~2.11(b) and/or (c)~~2.12, subject to the provisions of Section 2.21 and ~~the amount of~~ subject to any ~~such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow~~ penalties that may be ~~applied~~ applicable to ~~Other Applicable Indebtedness only to (and not in excess of)~~ the ~~extent to which a mandatory prepayment in respect~~ early withdrawal of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)time deposit.

Appears in 1 contract

Sources: Credit Agreement (American Buildings Co /De/)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock shall be issued by Holdings, the Borrower or any of its Subsidiaries (other than (i) Capital Stock issued to directors and employees of Holdings, the Borrower or any of its Subsidiaries under employee benefit plans, (ii) Capital Stock issued to sellers as consideration in acquisitions of equity or ownership interests in, or assets of, other Persons, (iii) Capital Stock issued to existing stockholders of Holdings or other investors in private placements of the Capital Stock organized by the Sponsor, or (iv) Capital Stock issued by Holdings the proceeds of which are used to repay in whole or in part the 2002 Holdings Bridge Notes, any Holdings Refinancing Indebtedness, the Senior Discount Debentures or any Senior Discount Debenture Refinancing) an amount equal to 50% of the Net Cash Proceeds from the issuance of such Capital Stock shall be applied on the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(d). If any Indebtedness shall be incurred by Holdings, the Borrower or any ~~Group Member~~ of its Subsidiaries after the Closing Date (other than ~~any~~ the 2003 Senior Subordinated Notes, the Senior Discount Debenture Refinancing, the Holdings Refinancing Indebtedness and other Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section ~~7.2), concurrently with, and~~ 7.2 as ~~a condition to closing of such transaction,~~ in effect on the date hereof) an amount equal to 100% of the Net Cash Proceeds ~~thereof~~ from the incurrence of such Indebtedness shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.9(d). (b) ~~Subject to clauses (d)~~ If on any date Holdings, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice in respect of any Recovery Event shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, (i) an aggregate amount not to exceed $5,000,000 of ~~this~~ Net Cash Proceeds from Asset Sales in any fiscal year of the Borrower may be retained by Holdings, the Borrower or any of its Subsidiaries, as the case may be, and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.11, if~~2.9(d). (c) If, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 2004, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.9(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ 2.9 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans and shall be applied as set forth in Sections 2.15(b) or (c), as the case may be. Each prepayment of the Loans under this Section ~~2.11~~ 2.9 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Oci Holdings Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than paragraphs (f) and (i) thereof) and excluding any Capital Stock issued pursuant to management stock option and incentive plans)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% (or 50%, in the case of Capital Stock or Subordinated Debt) of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g~~Sections 2.9(c) ~~of this Section 2.11~~and 2.15. (b) ~~Subject to clauses (d) and (i)~~ If on any date the Borrower or any of ~~this Section 2.11~~its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness delivered in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such periodthereof, such ~~amount~~ Net Cash Proceeds shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, applied on ~~the relevant Excess Cash Flow Application Date, be applied~~ such date toward the prepayment of the Term Loans as set forth in ~~clause (g~~Sections 2.9(c) ~~of this Section 2.11, provided that no such prepayment shall be made if~~ and 2.15 to the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which extent such prepayment is ~~made, are~~ required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to ~~the preceding clause (i~~Section 7.5(e); PROVIDED, the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in ~~Section 2.11(g)~~Sections 2.9(c) and 2.15. (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share application of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 2.9 shall be ~~applied~~ made, FIRST, to ~~the prepayment of the~~ Term Loans ~~in accordance with Section 2.17(b). The application of any prepayment of~~ which are ABR Loans ~~pursuant~~ and, SECOND, to ~~this Section 2.11 shall be made on a pro rata basis regardless of Type~~Term Loans which are Eurodollar Loans. Each prepayment of the Loans (other than any Loan that is an ABR Loan) under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Claires Stores Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2), concurrently with, and~~ 7.2 or permitted by the Required Lenders pursuant to Section 10.1 (except as ~~a condition~~ may be otherwise agreed to ~~closing~~ by the Required Lenders in connection with their approval of such ~~transaction~~Indebtedness pursuant to Section 10.1)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the ~~prepayment~~ reduction of the ~~Term Loans~~ Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.8(c). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding Term~~ toward the prepayment of the Revolving Loans and, if applicable, the reduction of the Revolving Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.8(c); ~~provided~~ PROVIDED, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event~~the relevant Reinvestment Event shall be applied toward the prepayment of the Revolving Loans and, if applicable, the reduction of the Revolving Commitments as set forth in Section 2.8(c). (c) Amounts to be applied pursuant to Section 2.8(a) shall be applied to reduce permanently the Revolving Commitments. Amounts to be applied pursuant to Section 2.8(b) shall be applied to prepay outstanding Revolving Loans and/or Swingline Loans without reduction of the Revolving Commitments (and if no such Loans are outstanding ~~Term~~ prior to such prepayment or after giving effect to a portion of such prepayment, such excess proceeds may be applied by the Borrower in any manner not prohibited by this Agreement); PROVIDED that notwithstanding the foregoing, if the aggregate amount of prepayments pursuant to Section 2.8(b) exceeds $20,000,000, any amount in excess thereof that would otherwise be applied toward the prepayment of the Revolving Loans ~~as set forth in Section 2.11(g). (d) Notwithstanding anything~~ without reduction of the Revolving Commitments shall instead be applied to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the ~~contrary~~ extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, PROVIDED that, in ~~this Agreement~~ the case of any such permanent reduction of the Revolving Commitments, if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount by which the Total Revolving Extensions of Credit exceeds the amount of Total Revolving Commitments as so reduced (~~including clauses (b)~~ because L/C Obligations constitute a portion thereof), the Borrower shall, if an Event of Default shall have occurred and ~~(c) above)~~be continuing, to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion balance of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); providedexcess, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize replace outstanding Letters of Credit ~~to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to~~ and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent ~~notice, substantially in~~ for the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer benefit of the ~~Borrower Representative (~~Lenders on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent terms and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver conditions satisfactory to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.8 or Section 7.5(a)(v) shall be ~~made on a pro rata basis regardless of Type~~made, FIRST, to ABR Loans and, SECOND, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.8 or Section 7.5(a)(v) (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid~~. (h) Notwithstanding any~~ . Unless required as a result of the ~~other provision~~ permanent reduction of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this AgreementRevolving Commitments, any ~~amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency~~ Revolving Loans ~~shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as~~ prepaid hereunder may be ~~provided for herein~~reborrowed. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Montgomery Open Mri LLC)

Mandatory Prepayments and Commitment Reductions. (a) If If, for any ~~Indebtedness~~ fiscal year, commencing with the fiscal year ending December 31, 2000, there shall be ~~incurred~~ Excess Cash Flow for the Borrower and its Restricted Subsidiaries, by ~~any Group Member (other than any Indebtedness permitted~~ May 31 of the following fiscal year the Borrower shall apply an amount equal to ~~be incurred by any~~ 50% of Excess Cash Flow for such ~~Person~~ prior fiscal year to the prepayment of the Loans and to the permanent reduction of the Revolving Credit Commitments in accordance with ~~Section 7.2~~subsection 2.9(d). (b) If the Borrower or any of its Restricted Subsidiaries shall receive any net cash proceeds from the sale or other disposition of property, ~~concurrently with~~businesses or assets (except for (i) sales or other dispositions of obsolete or worn out property and (ii) sales of inventory or other property in the ordinary course of business) and such proceeds are not used to purchase other assets within 12 months of receipt thereof, ~~and as a condition to closing of such transaction,~~ the Borrower shall apply an amount equal to 100% of the ~~Net Cash Proceeds thereof shall be applied on the date~~ portion of such ~~issuance or incurrence toward~~ net cash proceeds not so used to the prepayment of the ~~Term~~ Loans ~~as set forth~~ and to the permanent reduction of the Revolving Credit Commitments in ~~clause (g) of this Section 2.11~~accordance with subsection 2.9(d). (bc) ~~Subject to clauses (d) and (i)~~ If the Borrower or any of ~~this Section 2.11, if, for~~ its Restricted Subsidiaries shall receive any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i)~~ proceeds from any insurance on the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option~~ property of the Borrower ~~Representative and~~ or its Restricted Subsidiaries (other than business interruption insurance), then the Borrower shall apply 100% of such proceeds, to the extent they are not ~~funded with (x)~~ reasonably promptly applied to the repair or replacement of the affected property to which such proceeds ~~of Indebtedness constituting “long term indebtedness”~~ relate (or ~~a comparable caption) under GAAP (~~to the payment of taxes or other ~~than Indebtedness in respect~~ expenses related to such property or the repayment of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving CommitmentsIndebtedness secured thereby), ~~(3) optional prepayments, purchases and redemptions and buybacks (with credit given~~ to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Loans and to the permanent reduction of the Revolving Credit Commitments in accordance with subsection 2.9(d). (d) Each prepayment of the Loans and permanent reduction of the Revolving Credit Commitments pursuant to this subsection shall be applied first, to the permanent repayment of the Term Loans ~~as set forth~~ (ratably among them in ~~clause~~ accordance with the respective aggregate then outstanding principal amounts thereof) in the inverse order of their scheduled maturities (gexcept that any prepayment pursuant to subsection 2.9(b) ~~of this Section 2.11, provided that no such prepayment~~ shall be ~~made if~~ applied ratably to such remaining scheduled installments) and second, to the ~~Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (~~permanent reduction of the Revolving Credit Commitments and, ~~if Excess Cash Flow exceeds~~ to the extent required by subsection 2.4(c), to the prepayment of Revolving Credit Loans. Each such ~~amount~~reduction of the Revolving Credit Commitments shall reduce, ~~only~~ in inverse order, the mandatory reductions required on each Mandatory Reduction Date except that any such ~~excess~~ reduction of Revolving Credit Commitments pursuant to subsection 2.9(b) shall ~~be subject to prepayment)~~reduce pro rata the mandatory reductions then required on each remaining Mandatory Reduction Date. Each such prepayment shall be ~~made~~ accompanied by payment of accrued interest on ~~a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after~~ the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on amount prepaid plus any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded amounts payable pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11subsection 2.19. (e) ~~In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then~~ Notwithstanding anything in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit this subsection to the ~~extent necessary to remove such~~ contrary: (i) no prepayment of Loans or Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment Credit Commitment reduction pursuant to ~~clause~~ either paragraph (b) or (c) above ~~(such declined amounts~~shall be required to be made until the last Business Day of December of the then current fiscal year of the Borrower or, if earlier, the ~~“Declined Proceeds”~~date on which the aggregate of the amounts to be applied to such prepayment and/or reduction in such fiscal year as provided in such paragraphs (b) and (c) equals or exceeds $1,000,000, after which date all such amounts received during such fiscal year shall be applied to such prepayment and/or reduction as therein provided; and (ii) if the Borrower so elects by ~~providing written~~ notice ~~(each, a “Rejection Notice”)~~ to the Administrative Agent ~~and the Borrower Representative~~ no later than ~~12:00 p.m.~~ 15 Business Days prior to any date that a prepayment of Eurodollar Loans would be required to be made but for this clause (~~New York City time~~ii), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the no prepayment of ~~the Term Loans in accordance with Section 2.17(b). The application of any prepayment of~~ Eurodollar Loans pursuant to this ~~Section 2.11~~ subsection shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made ~~under this Section 2.11 other than~~ except on the last ~~day~~ day(s) of the respective Interest ~~Period applicable thereto,~~ Period(s) therefor in effect at the ~~applicable Borrower may, in its sole discretion, deposit the amount of any~~ time such ~~prepayment~~ prepayments would otherwise be required to be made ~~thereunder with the Administrative Agent~~provided, that on any date that a prepayment of Eurodollar Loans would be required to be ~~held as security~~ made but for this subsection the ~~obligations of the applicable~~ Borrower ~~to make~~ shall cash-collateralize such ~~prepayment pursuant to~~ payment in a ~~cash collateral agreement to be entered into on terms~~ manner reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereinAgent. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Westwood One Inc /De/)

Mandatory Prepayments and Commitment Reductions. (a) If after the Closing Date any Capital Stock shall be sold or issued by Holdings, the Company or any of its Subsidiaries (including, without limitation, any sales pursuant to the exercise of warrants, but excluding (i) any issuance of common stock in payment of interest under the Seller Note, (ii) any Permitted Employee Stock Issuances, to the extent the proceeds of such Permitted Employee Stock Issuances are contributed by Holdings to the Company and (iii) the issuance of common stock of Holdings as a part of the consideration for the Exchange Offer and the Merger), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied within three Business Days after the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans and Acceptances and the reduction of the Revolving Credit Commitments as set forth in Section 6.3(e). (b) If after the Closing Date any Indebtedness shall be issued or incurred by Holdings, the Company or any ~~Group Member~~ of its Subsidiaries (excluding any Indebtedness (other than ~~any~~ Indebtedness ~~permitted to be~~ evidenced by High Yield Notes) incurred ~~by any such Person~~ in accordance with Section ~~7.2~~10.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within three Business Days after the date of such issuance or incurrence toward the prepayment of the Term Loans and the Acceptances and the reduction of the Revolving Credit Commitments (or, if required by Section 6.3(e), reduction of the Tranche B-1 Term Loan Commitments and the Tranche C-1 Term Loan Commitments) as set forth in ~~clause (g) of this~~ Section ~~2.11~~6.3(e). (bc) ~~Subject to~~ If after the Closing Date the Company or any of its Subsidiaries (other than the Canadian Borrower or any of its Subsidiaries) shall receive Net Cash Proceeds from any Asset Sale (including, without limitation, any Net Cash Proceeds from any Dispositions permitted by clauses (de) and (f) of Section 10.6 to the extent such proceeds exceed $225,000,000 in the aggregate) or Recovery Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the U.S. Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 6.3(f). If after the Closing Date the Canadian Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Total Aggregate Canadian Term Loan Outstandings and the permanent reduction of the Canadian Facility Maximum Amount as set forth in Section 6.3(g). Notwithstanding the foregoing, (i) no such prepayment or reduction shall be required in respect of Asset Sales for which the Net Cash Proceeds in any fiscal year aggregate up to (but do not exceed) $5,000,000 (in the aggregate for the Company and its Subsidiaries, including the Canadian Borrower and its Subsidiaries) and (ii) no such prepayment or reduction shall be required in respect of any Asset Sales or any Recovery Event if the Company delivers a Reinvestment Notice in respect of each such Asset Sale and Recovery Event; PROVIDED, that, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayments and reductions required by Section 6.3(f) or 6.3(g), as applicable; and PROVIDED, FURTHER, that no Reinvestment Notice shall be required in respect of Asset Sales for which no prepayment is required pursuant to the foregoing clause (i) of this ~~Section 2.11, if~~sentence. (d) If, for any fiscal year of Holdings commencing with the fiscal year ending August 31, 1999, Holdings shall have Excess Cash Flow ~~Period, there shall be Excess Cash Flow, an amount equal to~~ (i) calculated without taking into account the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the~~ Canadian Borrower ~~Representative~~ and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4its Subsidiaries), the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, Company shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply 75% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g)~~ Section 6.3(f). If, for any fiscal year of ~~this Section 2.11~~the Canadian Borrower commencing with the fiscal year ending August 31, ~~provided that no such prepayment~~ 1999, the Canadian Borrower shall ~~be made if~~ have Excess Cash Flow, the Canadian Borrower shall, on the relevant Excess Cash Flow ~~for any~~ Application Date, apply 75% of such Excess Cash Flow ~~Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment~~toward the prepayment of the Total Aggregate Canadian Term Loan Outstandings and the permanent reduction of the Canadian Facility Maximum Amount as set forth in Section 6.3(g). Each such prepayment and reduction shall be made on a date (an ~~“Excess Cash Flow Application Date”~~"EXCESS CASH FLOW APPLICATION DATE") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ Holdings referred to in Section ~~6.1(a~~9.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding financial statements are actually delivered. Notwithstanding the foregoing, ~~on each Reinvestment Prepayment Date, an amount equal to~~ if for any fiscal year the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow ~~attributable to Subsidiaries (or branches~~ of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties one of the ~~relevant directors~~Canadian Borrower or Holdings (calculated without taking into account the Canadian Borrower and its Subsidiaries), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, is a negative number, and the Excess Cash Flow of the other such ~~distribution will be promptly effected~~ Person is a positive number, the amount of the prepayment and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to reduction required by this Section ~~2.11~~6.3(d) in respect of the Company (if Holdings is the Person having positive Excess Cash Flow) or the Canadian Borrower (if the Canadian Borrower is the Person having positive Excess Cash Flow) for such fiscal year shall be reduced by the amount of the negative Excess Cash Flow of the other such Person for such fiscal year. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 6.3(a) or 6.3(b) shall be ~~applied~~ applied, FIRST, to the prepayment of the U.S. Term Loans and Total Aggregate Canadian Term Loan Outstandings, ratably in accordance with the outstanding amount of each Facility and, SECOND, to reduce permanently the Revolving Credit Commitments. Notwithstanding the preceding sentence, any prepayment made pursuant to Section ~~2.17(b~~6.3(b) with the Net Cash Proceeds of the High Yield Offering shall be applied, FIRST, to prepay the Tranche B-1 Term Loans and the Tranche C-1 Term Loans, ratably in accordance with the outstanding amounts thereof (or, if the High Yield Offering is consummated prior to the Merger Date, such amount shall be applied to permanently reduce the Tranche B-1 Term Loan Commitments and the Tranche C-1 Term Loan Commitments) and, SECOND, in accordance with the preceding sentence. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the aggregate Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Company shall not be required to reduce any outstanding Letters of Credit. The application of any such prepayment of U.S. Term Loans ~~pursuant to this Section 2.11~~ shall be made first to Base Rate Loans and second to LIBOR Loans. The application of any such prepayment to Total Aggregate Canadian Term Loan Outstandings shall be made first to Canadian Term Loans and second (but only on ~~a pro rata basis regardless of Type~~the maturity date thereof) to Acceptances. Each such prepayment of the Loans ~~under this Section 2.11~~ (except in the case of Revolving Credit Loans that are ~~ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (f) Amounts to be applied in connection with prepayments and reductions made pursuant to Section 6.2(c), the first sentence of Section 6.3(c) or the first sentence of Section 6.3(d) shall be applied, FIRST, to the prepayment of the U.S. Term Loans, ratably in accordance with the respective outstanding amounts of the Facilities, and, SECOND, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the aggregate Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Company shall not be required to reduce any outstanding Letters of Credit. The application of any such prepayment of U.S. Term Loans shall be made first to Base Rate Loans and second to LIBOR Loans. Each such prepayment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (g) Amounts to be applied in connection with prepayments and reductions made pursuant to Section 6.2(c), the second sentence of Section 6.3(c) or the second sentence of Section 6.3(d) shall be applied to the reduction of the Total Aggregate Canadian Term Loan Outstandings and the simultaneous and automatic reduction in an equal amount of the Canadian Facility Maximum Amount. The application of any such prepayment to Total Aggregate Canadian Term Loan Outstandings shall be made first to Canadian Term Loans and second (but only on the maturity date thereof) to Acceptances. Each such prepayment of the Canadian Term Loans shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) ~~Notwithstanding any~~ The amount of each prepayment of the ~~other provision of~~ Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans or Canadian Term Loans, as the case may be, required pursuant to this Section ~~2.11, if any prepayment of Eurocurrency Loans is required~~ 6.3 shall be applied to ~~be made under this Section 2.11 other than on~~ reduce the ~~last day~~ then remaining installments of the ~~Interest Period applicable thereto~~Term Loans under the relevant Facility, PRO RATA based upon the ~~applicable Borrower may~~then remaining outstanding principal amount of such installments. (i) Notwithstanding anything in Section 6.2(a), ~~in its sole discretion~~Section 6.3(e) or Section 6.3(f) to the contrary and provided that there are Tranche A Term Loans and/or Total Aggregate Canadian Term Loan Outstandings then outstanding, ~~deposit~~ with respect to the amount of any ~~such~~ optional prepayment ~~otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such~~ described in Section 6.2(a) or mandatory prepayment ~~pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory~~ described in Section 6.3 that is allocated to the ~~Administrative Agent until~~ Tranche B Term Loans or Tranche C Term Loans (such amounts, the ~~last day~~ "TRANCHE B PREPAYMENT AMOUNT" and the "TRANCHE C PREPAYMENT AMOUNT", respectively), the Company will, in lieu of ~~such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply~~ applying such amount to the prepayment of Tranche B Term Loans and Tranche C Term Loans, respectively, as provided in Section 6.2(a) or Section 6.3(e) or (f), as the case may be, on the date specified in Section 6.2(a) or Section 6.3, as the case may be, for such ~~Eurocurrency Loans~~ prepayment, give the General Administrative Agent telephonic notice (promptly confirmed in ~~accordance with this Section 2.11~~ writing) requesting that the General Administrative Agent prepare and provide to each Tranche B Lender and Tranche C Lender a notice (~~determined~~ each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the Company, the General Administrative Agent will send to each Tranche B Lender and Tranche C Lender a notice (a "PREPAYMENT OPTION NOTICE"), which shall be in the form of Exhibit H, and shall include an offer by the Company to prepay on the date (each a "PROPOSED PREPAYMENT DATE") that is 15 days after the date of the ~~date~~ Prepayment Option Notice, the Tranche B Term Loans or Tranche C Term Loans, as the case may be, of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount or Tranche C Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans or Tranche C Term Loans, as the case may be. On the Proposed Prepayment Date, (A) the Company shall pay to the General Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans or Tranche C Term Loans, as the case may be, in respect of which Tranche B Lenders and Tranche C Lenders have accepted prepayment ~~was~~ as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B Prepayment Amount and Tranche C Prepayment Amount, as applicable, with respect to each Accepting Lender and (B) the Company shall pay to the General Administrative Agent an amount equal to 100% of the portion of the Tranche B Prepayment Amount and Tranche C Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied (i) in the case of optional prepayments pursuant to Section 6.2, to prepay the Tranche A Term Loans and (ii) in the case of mandatory prepayments, to the other Facilities required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans prepaid pursuant to Section ~~2.11(b~~6.3(e) ~~and/or (c~~or Section 6.3(f), ~~and~~ as the ~~amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow~~ case may ~~be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale~~be, ~~Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans~~ ratably in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)amounts thereof.

Appears in 1 contract

Sources: Credit Agreement (Safety Kleen Corp/)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than any Permitted Refinancing Indebtedness in respect of the Facilities)~~, concurrently with, and as a condition to closing of such transaction~~), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(d); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) If(b) Subject to ~~clauses~~ Section 2.11(g), if on any date any Group Member shall receive Net Cash Proceeds in excess of $7,500,000 (dthe “Net Cash Proceeds Threshold”) ~~and~~ from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shallin excess of the Net Cash Proceeds Threshold shall be required to be applied within five Business Days after such date toward the prepayment of theto prepay Subject Term B Loans as set forth in Section 2.11(d) within five Business Days after such date; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Subject Term B Loans as set forth in Section 2.11(d). (ic) ~~of this Section 2.11, if~~(c) If, for any ~~Excess Cash Flow Period~~fiscal year of the Parent Borrower commencing with the first full fiscal year after the Closing Date, there shall be Excess Cash Flow, ~~an amount equal to (i)~~ the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the~~ Parent Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply toward the prepayment of the Subject Term B Loans as set forth in ~~clause~~ Section 2.11(d) the excess of (gx) the ECF Percentage of such Excess Cash Flow over (y) the sum of (I) the aggregate principal amount of any (x) Term Loans and Revolving Loans (including under any Incremental Facilities) prepaid pursuant to Section 2.10, plus (II) the aggregate principal amount of any Incremental Equivalent Debt, Replacement Loans and/or any other Indebtedness permitted to be incurred pursuant to Sections 7.2 and 7.3 in each case to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Term B Loans, voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to be prepaid, repurchased, redeemed or otherwise retired), plus (III) the amount of any reduction in the outstanding amount of any Term Loans, Incremental Equivalent Debt, Replacement Loan and/or any other Indebtedness permitted to be incurred pursuant to Sections 7.2 and 7.3 in each case to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Term B Loans, resulting from any purchase or assignment made in accordance with Sections 2.25 and 10.6(e) of this Agreement (including in connection with any Dutch Auction) (with respect to Term Loans) and any equivalent provisions with respect to any such Incremental Equivalent Debt, such Replacement Loans and/or such other Indebtedness, but only to the extent of the actual price paid in cash by the applicable Borrower in connection with such purchase or assignment, in each case of clauses (I)-(III), (A) excluding any such payments, prepayments and expenditures made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section ~~2.11~~2.11(c) in the prior fiscal year, (B) in the case of any prepayment of revolving Indebtedness, only to the extent accompanied by a permanent reduction in the relevant commitments and (C) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of other long-term funded Indebtedness (other than revolving Indebtedness) of the Parent Borrower or its Restricted Subsidiaries; provided ~~that no such~~ that, with respect to each fiscal year, a prepayment shall only be ~~made~~ required under this Section 2.11(c) if the ~~Excess Cash Flow~~ applicable prepayment under this Section 2.11(c) for ~~any Excess Cash Flow~~ such fiscal year isexceeds the greater thanof (i) $5,000,0005,750,000 and (ii) 5.0% of Consolidated EBITDA for the Applicable Reference Period ~~is less than $10,000,000~~ (~~and, if Excess Cash Flow exceeds such amount,~~ the “ECF Threshold”); provided further that only ~~such~~ amounts in excess of the ECF Threshold shall be ~~subject~~ required to ~~prepayment~~be applied to prepay Subject Term Loans under this Section 2.11(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Parent Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the ~~Lenders~~Lenders and (ii) the date such financial statements are actually delivered. (cd) (d) Subject to ~~clauses~~ Section 2.11(g), amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Subject Term Loans in accordance with Section 2.17(b). The application of any prepayment pursuant to this Section 2.11 shall be made first, to ABR Loans and, second, to Term Benchmark Loans. Each prepayment of the Subject Term Loans under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (de) (e) With respect to any prepayment pursuant to this Section 2.11 of Subject Term B Loans and, unless otherwise specified in the applicable Incremental Facility Activation NoticeAmendment, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Parent Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment that is required to be made under this Section 2.11. Any Lender may decline to accept all (ibut not less than all) of its share of any such prepayment (the “Declined Amount”) by providing written notice to the Administrative Agent no later than two Business Days after the date of such L▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. If the Lender does not give a notice to the Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. Such L▇▇▇▇▇’s Declined Amount may be retained by the Parent Borrower. (f) (f) Notwithstanding any other provisions of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent ~~that the Borrower Representative has determined in good faith that (i)~~ any of or all of the Net Cash Proceeds of any Asset Sale or by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to ~~Subsidiaries (or branches of~~ Foreign Subsidiaries) , are prohibited or delayed by any applicable local law ~~from being repatriated to the relevant Borrower(s)~~ (including ~~as a result of~~ financial ~~assistance and~~ assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the ~~relevant directors),~~ directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Parent Borrower or any applicable Domestic Subsidiary or if the Parent Borrower has determined in good faith that repatriation of any such amount to the Parent Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (~~ii) such repatriation would present~~ including a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution acceleration of the ~~relevant amounts~~ point in time when such earnings would ~~reasonably~~ otherwise be ~~expected~~ taxed) with respect to ~~result in material adverse Tax consequences~~such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to ~~repay~~ prepay the Term Loans at the times ~~set forth~~ provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary ~~or branch (the Borrowers hereby agreeing to cause~~ so long, but only so long, as the applicable ~~Subsidiary~~ local law will not permit repatriation or ~~branch~~ the passing on to ~~promptly take commercially reasonable actions to permit~~ or otherwise using for the benefit of the Parent Borrower or the applicable Domestic Subsidiary, or the Parent Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation ~~without violating~~ of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or ~~incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if~~ the Parent Borrower determines in good faith such repatriation ~~becomes permitted under such applicable local law,~~ would ~~not present a material risk as described in clause (ii) above, or~~ no longer have such material adverse ~~Tax consequences would result from such distribution, as the case may be~~tax consequences, such ~~distribution~~ repatriation will be promptly effected and such ~~distributed~~ repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than 10 five Business Days after such ~~distribution~~repatriation) applied (net of additional ~~Taxes~~ taxes payable or ~~reserved against~~ reasonably estimated to be payable as a result thereof) to the ~~repayment~~ prepayment of the Term Loans pursuant to this Section ~~2.11.~~ 2.11 (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if provided that no such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term ~~Loans in accordance with Section 2.17(b). The application of any prepayment of~~ Loans pursuant to this Section 2.11 shall be ~~made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except~~ required in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Parent Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Parent Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Parent Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would ~~otherwise~~ have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary). (g) (g) Additional Pari Passu Indebtedness may share in any mandatory prepayment under this Section 2.11 (other than any mandatory prepayment under Section 2.11(a) with respect to Permitted Refinancing Indebtedness in respect of the Facilities) on a ratable basis (but, for the avoidance of doubt, not on a greater than pro rata basis) to the extent such prepayment is required under the terms of such Additional Pari Passu Indebtedness and such prepayment shall reduce, without duplication, the amount of any prepayment of Term Loans otherwise required under this Section 2.11. (h) (h) If for any reason (other than currency fluctuations) the aggregate Revolving Extensions of Credit of all Lenders under the Revolving Facility at any time exceeds the aggregate Revolving Commitments under the Revolving Facility, promptly following written notice from the Administrative Agent to the Parent Borrower, the applicable Borrower shall prepay or cause to be promptly prepaid the Revolving Loans or Swingline Loans or cash collateralize the outstanding Letters of Credit in an aggregate amount equal to such excess. (i) On the last Business Day of each fiscal quarter, or at such other time as is reasonably determined by the Administrative Agent, the Administrative Agent shall determine the Dollar Equivalent of the aggregate outstanding Revolving Extensions of Credit. If, at the time of such determination, the aggregate outstanding Revolving Extensions of Credit exceed the Revolving Commitments then in effect by 5% or more, then within five Business Days of written notice to the Parent Borrower, the applicable Borrower shall prepay Revolving Loans or Swingline Loans or cash collateralize the outstanding Letters of Credit in an aggregate principal amount at least equal to such excess; provided that the failure of the Administrative Agent to determine the Dollar Equivalent of the aggregate outstanding Revolving Extensions of Credit as provided in this Section 2.11(i) shall not subject the Administrative Agent to any liability hereunder. (j) (j) Unless otherwise agreed to by the Required Revolving Lenders, solely with respect to the Revolving Facility, if during the Financial Covenant Relief Period there are any Revolving Loans, Swingline Loans and/or Reimbursement Obligations outstanding as of the last Friday of any calendar month (commencing with the calendar month ending July 31, 2023) and the Consolidated Cash Balance on such date exceeds $325,000,000, the Parent Borrower shall, on the date that is threewithin five Business Days following delivery of the Liquidity Certificate for such calendar monthof such date, prepay Revolving Loans in an amount at least equal to the amount by which the Consolidated Cash Balance exceeds $325,000,000; provided that, notwithstanding anything herein to the contrary, (x) no prepayment notice shall be required to be ~~applied if~~ delivered in connection with such ~~Other Applicable Indebtedness was not then outstanding)~~prepayment and (y) no breakage or other amounts pursuant to Section 2.20 shall be required in connection with such prepayment. (k) Notwithstanding anything herein to the contrary, the Sixth Amendment Term B Commitments shall be automatically and permanently reduced to $0 on the Sixth Amendment Effective Date, immediately after giving effect to the making of the Sixth Amendment Term Loans on such date.

Appears in 1 contract

Sources: Credit Agreement (Ultra Clean Holdings, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock (other than in respect of stock options granted to employees or directors and directors' qualifying shares) shall be issued by any Group Member to a Person other than another Group Member, an amount equal to 50% of the Net Cash Proceeds thereof shall be paid to the Administrative Agent within three Business Days of such Group Member's receipt of proceeds of such issuance for application by the Administrative Agent toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.12(d). (b) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments2.12(d), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) ~~Subject to clauses (d) and (i) of this Section 2.11, if,~~ If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless a Reinvestment Notice shall be delivered to the ~~Borrower Representative has determined~~ Administrative Agent in ~~good faith that~~ respect thereof, such Net Cash Proceeds shall be ~~reinvested in its business (a “Reinvestment Event”), an aggregate amount equal~~ paid to ~~100% of such Net Cash Proceeds shall be applied~~ the Administrative Agent within ~~five~~ three Business Days of such ~~date to prepay outstanding~~ Group Member's receipt of proceeds of such Asset Sale or Recovery Event for application by the Administrative Agent toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.12(d); ~~provided~~ provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be paid to the Administrative Agent to be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.11(g~~2.12(d). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.12 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Commitments. The amount of each prepayment by either Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, pro rata based upon the then remaining principal amount thereof. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans, to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations and outstanding Competitive Bid Loans constitute a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit or Competitive Bid Loans, as applicable, and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.12 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.12 (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) Notwithstanding ~~any of~~ the ~~other provision~~ foregoing provisions of this Section ~~2.11~~2.12, if at any time any prepayment of ~~Eurocurrency~~ the Loans ~~is required~~ pursuant to ~~be made~~ Section 2.12 would result, after giving effect to the procedures set forth in this Agreement, in either Borrower incurring breakage costs under ~~this~~ Section ~~2.11~~ 2.21 as a result of Eurodollar Loans being prepaid other than on the last day of ~~the~~ an Interest Period ~~applicable~~ with respect thereto, then, the ~~applicable Borrower~~ relevant Group Member may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans with the Administrative Agent (which deposit must be equal in amount to the amount of ~~any~~ such ~~prepayment otherwise required to be made thereunder with the Administrative Agent,~~ Eurodollar Loans not immediately prepaid) to be held as security for the obligations of the ~~applicable Borrower~~ Group Members to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative ~~Agent until~~ Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such ~~Interest Period, at which time the Administrative Agent~~ Eurodollar Loans (or such earlier date or dates as shall be ~~authorized (without any further action~~ requested by ~~or notice to or from any Borrower or any other Loan Party) to apply~~ such ~~amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made~~Group Member); provided ~~that~~ that, such unpaid ~~Eurocurrency~~ Eurodollar Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid ~~Eurocurrency~~ Eurodollar Loans or the related portion of such Eurodollar Loans, as the case may be, have or has been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Interstate Bakeries Corp/De/)

Mandatory Prepayments and Commitment Reductions. (a) If on any ~~Indebtedness~~ date prior to such date as the Loans and the other obligations under the Loan Documents then due and payable shall ~~be incurred by~~ have been paid in full: (i) any Group Member shall receive Net Cash Proceeds from Disposition of any portion of the Collateral, (ii) the Borrower shall receive as the direct or indirect holder of any portion of the Collateral, any Non-Recurring Distribution, or (iii) the Borrower or any of its Affiliates (other than CQP, Subsidiaries of CQP, Freeport LNG Development, L.P. and Subsidiaries of Freeport LNG Development, L.P.) shall receive any ~~Indebtedness permitted~~ amounts lent or otherwise distributed outside the ordinary course of business from CQP, a Subsidiary of CQP, Freeport LNG Development, L.P. or a Subsidiary of Freeport LNG Development, L.P. (any such amount received as described in clause (i), (ii) or (iii) of this Section 3.2(a), a “Prepayment Offer Amount”), the Borrower shall notify the Administrative Agent of the receipt of the applicable Prepayment Offer Amount within one Business Day after each date on which all such Prepayment Offer Amounts received exceed $20,000,000 in the aggregate and offer in such notice to prepay the Loans having an aggregate principal amount equal to the aggregate amount of the Prepayment Offer Amounts as set forth in Section 3.2(b); provided that the Borrower shall deposit such Prepayment Offer Amounts in a collateral account (subject to documentation in form and substance satisfactory to the Administrative Agent) one Business Day after the date on which such amounts are received until such amounts shall aggregate in excess of $20,000,000 and so be required to be ~~incurred by~~ offered. The Administrative Agent shall forthwith transmit any such ~~Person~~ offer of prepayment to the Lenders. Each Lender deciding to receive its pro rata share of any amount so offered shall so notify the Administrative Agent within five (5) Business Days of its receipt of notice thereof. If any Lender declines to accept such offer of prepayment, then the amount of the Loans of each accepting Lender to be prepaid shall be increased to a portion of the Prepayment Offer Amount in ~~accordance with Section 7.2), concurrently with~~proportion to its pro rata share of the Loans of all Lenders accepting such offer. The Administrative Agent shall forthwith transmit any such acceptances to the Borrower, and as the Borrower shall make any such prepayments within one (1) Business Day of its receipt of notice thereof from the Administrative Agent. For avoidance of doubt, the $20,000,000 threshold shall apply anew after each making of prepayment offers. The Borrower shall be free to retain, use or apply, for any purpose not otherwise prohibited hereunder, any funds not so required to be deposited in a ~~condition~~ collateral account or to ~~closing~~ make prepayments. (b) Amounts to be applied in connection with prepayments made pursuant to paragraph (a) of this Section 3.2 shall be applied, pro rata such ~~transaction~~that if any mandatory prepayment notice is given (i) at any time on or prior to the first anniversary of the Closing Date, an amount equal to 103% of the principal amount specified in the notice shall be payable on the date specified therein, (ii) at any time after the first anniversary of the Closing Date but on or prior to the second anniversary of the Closing Date, an amount equal to 102% of the principal amount specified in the notice shall be payable on the date specified therein; (iii) at any time after the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date, an amount equal to 101% of the principal amount specified in the notice shall be payable on the date specified therein; and (iv) at any time thereafter, an amount equal to 100% of the ~~Net Cash Proceeds thereof~~ principal amount specified in the notice shall be ~~applied~~ payable on the date ~~of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11~~specified therein, ~~if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii)~~ in each case ~~at the option of the Borrower Representative and to the extent not funded~~ together with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to ~~the~~ such date ~~of such prepayment~~ on the amount prepaid. (hi) ~~Notwithstanding any~~ No later than three Business Days after the occurrence of ~~the other provision~~ a Change of ~~this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto~~Control, the ~~applicable~~ Borrower ~~may, in its sole discretion, deposit the amount~~ shall offer to each Lender (by delivery of ~~any such~~ a prepayment ~~otherwise required~~ offer to ~~be made thereunder with~~ the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to ~~apply such amount to the prepayment~~ prepay all (but not part) of ~~such Eurocurrency~~ its outstanding Loans in accordance with this ~~Section 2.11~~ paragraph. The prepayment offer shall be irrevocable and shall state: (~~determined as~~ i) the proposed date of such prepayment (which date shall be no earlier than five Business Days and no later than 30 Business Days from the date of the ~~date~~ applicable Change of Control); (ii) the prepayment price (which, with respect to each Lender, shall be calculated as the sum of 101% of the aggregate principal amount of the outstanding Loans made by such Lender, and all accrued interest on the principal amount being prepaid); (iii) that each Lender that accepts such prepayment ~~was required~~ offer must accept such offer with respect to ~~be originally made)~~all (but not part) of its Loans; ~~provided~~ (iv) that each Lender must accept such ~~unpaid Eurocurrency Loans shall continue~~ offer by delivering notice of such acceptance to ~~bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default,~~ the Administrative Agent ~~shall also be authorized~~ within 30 days after the date the Borrower makes its offer to such Lender (~~without any further action by or notice to or from any Borrower or any other Loan Party~~the “Offer Period”); and (v) ~~to apply such amount to~~ in reasonable detail, the ~~prepayment~~ nature of the applicable ~~Eurocurrency Loans in accordance with this Section 2.11 (determined as~~ Change of Control and the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction projected impact of such ~~Eurocurrency Loans prior to any other application~~ Change of ~~such property~~ Control on the operations of Parent and its Subsidiaries or the Borrower, as the case may ~~be provided for herein~~be. (iii) ~~Notwithstanding the foregoing provisions of this Section 2.11, at the~~ The Borrower ~~Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies)~~ shall comply with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of each such ~~Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied~~ prepayment offer. Each Lender shall have the right to ~~prepay outstanding Term Loans in accordance with~~ accept such offer prior to the ~~terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis~~ expiration of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)applicable Offer Period.

Appears in 1 contract

Sources: Credit Agreement (Cheniere Energy Inc)

Mandatory Prepayments and Commitment Reductions. (a) If Unless ----------------------------------------------- the Required Prepayment Lenders shall otherwise agree, if any Capital Stock or Indebtedness shall be ~~incurred~~ issued or Incurred by the Company or any ~~Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing~~ of ~~such transaction~~its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or ~~incurrence~~ Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of~~ Section 2.11(d); provided that no such prepayment and reduction shall be -------- required pursuant to this Section ~~2.11~~2.11(a) with respect to (i) Designated Equity Amounts, (ii) any such Net Cash Proceeds from the issuance of Capital Stock which is applied within five Business Days after the receipt thereof by the Company and its Subsidiaries to repay Indebtedness Incurred in reliance upon the provisions of Section 7.2(i) or (j) hereof, (iii) other than to the extent set forth therein, Indebtedness Incurred in accordance with Section 7.2 and (iv) up to $10,000,000 in aggregate Net Cash Proceeds from the issuance of Capital Stock by the Borrower after the Closing Date. (b) ~~Subject to clauses (d)~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d); provided, -------- that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of ~~this~~ Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11~~2.11(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash ----------- Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the --------------------- date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section 2.11 shall be ~~applied~~ applied, first, to ----- the prepayment of the Term Loans (pro rata among the Tranche A Term Loans, the --- ---- Tranche B Term Loans and the Acquisition Loans, based upon the outstanding principal amount thereof), second, to the reduction of any available Acquisition ------ Term Loan Commitments and, third, to reduce permanently the Revolving Credit ----- Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if -------- the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. ~~The~~ Subject to the immediately preceding sentence, the application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first to ABR Loans and second to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 (except in the case of Revolving Credit Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such All unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made owing hereunder shall be ~~reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (~~due and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined payable on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)October 27,

Appears in 1 contract

Sources: Credit Agreement (Details Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by any Group Member (other than Excluded Indebtedness, any ~~Indebtedness permitted~~ Capital Stock issued to ~~be incurred~~ any Group Member and Capital Stock issued pursuant to the Employee Stock Purchase Plan) or any capital contribution is made to any Group Member (other than a capital contribution by any ~~such Person in accordance with Section 7.2~~Group Member)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance~~ issuance, incurrence or ~~incurrence~~ contribution toward the prepayment of the Term ~~Loans as~~ Loan set forth in ~~clause (g) of this~~ Section ~~2.11~~4.2(c). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of then such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to toward the prepayment of the Term ~~Loans in accordance with Section 2.17(b). The application of~~ Loan; provided, that, to the extent any prepayment ~~of Loans~~ pursuant to this ~~Section 2.11~~ clause (b) is made with the Net Cash Proceeds from the Prescott Sale/Leaseback, then the Borrowers shall only be ~~made on a pro rata basis regardless~~ required to apply toward the prepayment of ~~Type.~~ the Term Loan an amount equal to 50% of the aggregate Net Cash Proceeds received by any Group Member from the Prescott Sale/Leaseback; provided, further, that: (c) Each prepayment of the ~~Loans~~ Term Loan under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid~~. (h) Notwithstanding~~ . So long as no Default or Event of Default shall have occurred and be continuing any prepayments by the Borrowers shall be applied as follows: first, to fees and reimbursable expenses of the Administrative Agent then due and payable pursuant to any of the ~~other provision of this Section 2.11~~Loan Documents; second, if to interest then due and payable on the Term Loan, including any ~~prepayment of Eurocurrency Loans is~~ interest required to be ~~made under this~~ paid pursuant to Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent4.3; third, to ~~be held as security for~~ prepay the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment principal balance of the Term ~~Loans pursuant~~ Loan until prepaid in full; fourth, to ~~Section 2.11(b) and/or (c)~~all other Obligations, ~~and the amount~~ including expenses of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (Lenders to the extent reimbursable under Section 11.5; and fifth, the remaining to the Borrowers or such ~~Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)~~other Person legally entitled thereto.

Appears in 1 contract

Sources: Credit Agreement (Zila Inc)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree with the Borrower not to require such a prepayment of the Term Loans and the reduction of the Revolving Credit Commitments, if any ~~Indebtedness~~ Capital Stock shall be ~~incurred by any Group Member~~ issued (other than (i) the issuance of Capital Stock pursuant to the Warrant (as defined in the Acquisition Agreement as in effect on the date hereof) and (ii) the issuance by the Borrower of Capital Stock to outside directors, members of management or employees of the Borrower or any Subsidiary in the ordinary course of business the Net Cash Proceeds of which shall not exceed $5,000,000 in any fiscal year), or Indebtedness incurred, by the Borrower or any of its Subsidiaries (excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Section 7.2(g) in respect of the initial issuance of the Senior Subordinated Notes)~~, concurrently with, and as a condition to closing of such transaction,~~ ) an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.10(d). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there~~ Unless the Required Prepayment Lenders shall ~~be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ otherwise agree with the Borrower ~~Representative and~~ not to ~~the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or~~ require such a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans ~~as set forth in clause (g)~~ and the reduction of ~~this Section 2.11, provided that no such prepayment shall be made if~~ the ~~Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and~~Revolving Credit Commitments, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any ~~date, UK Holdco~~ date the Borrower or any ~~Restricted Subsidiary~~ of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.10(d); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirements pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11(g~~2.10(d). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) ~~above), to~~ Unless the ~~extent that~~ Required Prepayment Lenders shall otherwise agree with the Borrower ~~Representative has determined~~ not to require such a prepayment of the Term Loans and the reduction of the Revolving Credit Commitments, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 75% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~good faith that~~ Section 2.10(d). Each such prepayment and commitment reduction shall be made on a date (an "Excess Cash Flow Application Date") no later than five days after the earlier of (i) ~~any~~ the date on which the financial statements of ~~or all~~ the ~~Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable~~ Borrower referred to ~~Subsidiaries (or branches of Subsidiaries~~in Section 6.1(a) for the fiscal year with respect to which such prepayment is made are ~~prohibited or delayed by applicable local law from being repatriated~~ required to be delivered to the ~~relevant Borrower(s) (including as a result of financial assistance~~ Lenders and ~~corporate benefit restrictions and fiduciary and statutory duties of the relevant directors),~~ (ii) the date such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11financial statements are actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ 2.10 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.10 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.10 (except in the case of Revolving Credit Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Conmed Corp)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock shall be issued by any Loan Party in a public offering, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans as set forth in Section 2.10(e); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Term Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.10(e). (b) Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be incurred by any ~~Group Member~~ Loan Party (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of the receipt of such ~~issuance~~ Net Cash Proceeds toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.10(e). (c) Unless the Required Prepayment Lenders shall otherwise agree, if on any date any Loan Party shall for its own account receive Net Cash Proceeds from any Asset Sale or ~~incurrence~~ Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.10(e); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Term Loans shall be prepaid, and/or the Revolving Commitments shall be reduced, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.10(e). (d) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2004, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the Excess Cash Flow Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.10(e). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this Section 2.11~~ Sections 2.10(b) and (c) above shall be ~~applied~~ applied, first, to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~2.16(b) until paid in full and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.10 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.10 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Empi Inc)

Mandatory Prepayments and Commitment Reductions. (a) If [Intentionally Omitted.] (b) Unless the Required Prepayment Lenders shall otherwise agree with the consent of the Borrowers, subject to Section 2.18(d), if any ~~Indebtedness~~ Funded Debt shall be incurred by either of the Borrowers or any ~~Group Member~~ of their respective Subsidiaries (~~other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2~~excluding Non-Recourse Debt of Unrestricted Subsidiaries)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g)~~ Section 2.12(e); provided, however, that, notwithstanding the foregoing, the Net Cash Proceeds of ~~this Section 2.11. (b) Subject~~ any Funded Debt shall not be required to ~~clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall~~ be ~~Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and~~ so applied to the extent ~~not funded~~ incurred in accordance with ~~(x)~~ the ~~proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect~~ requirements of any ~~revolving credit facility) or (y) the proceeds~~ provision of ~~Permitted Cure Securities applied pursuant to~~ Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi)7.2, in each case, ~~made during~~as such provisions are in effect on the Restatement Effective Date, or ~~committed to be made within 12 months~~ amended or modified with the consent of the ~~end of~~Required Prepayment Lenders. For the avoidance of doubt, Funded Debt incurred in accordance with the ~~Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made~~ requirements of Section 7.2(g) as in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, effect on the ~~relevant Excess Cash Flow Application Date,~~ Restatement Effective Date shall not be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be ~~delivered to~~ applied towards any prepayments, notwithstanding the ~~Lenders~~amendment of this Agreement as contemplated by such Section 7.2(g). (c) ~~Subject~~ Unless the Required Prepayment Lenders shall otherwise agree with the consent of the Borrowers, subject to ~~clauses (d) and (i) of this~~ Section ~~2.11~~2.18(d), ~~if,~~ if on any ~~date, UK Holdco~~ date either of the Borrowers or any of their respective Restricted ~~Subsidiary~~ Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless a Reinvestment Notice is permitted to be delivered in respect thereof and is so delivered within 10 days from the ~~Borrower Representative has determined in good faith~~ date that such Net Cash Proceeds ~~shall be reinvested in its business (a “Reinvestment Event”)~~are received, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied within ~~five Business Days~~ 10 days from the date that such Net Cash Proceeds are received toward the prepayment of ~~such date to prepay outstanding~~ the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.12(e); ~~provided~~ provided, that if a Default or Event of Default has occurred and is continuing at the time such Net Cash Proceeds are received by either of the Borrowers or any of their respective Restricted Subsidiaries, then such Net Cash Proceeds shall be applied toward the prepayment of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans and the reduction of the Revolving Credit Commitments on the date so received; provided, further, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to one or more Reinvestment Notices shall not exceed (A) with respect to the Net Cash Proceeds of sale-leaseback transactions, $100,000,000 in the aggregate during the term of the facilities and (B) with respect to the Net Cash Proceeds of any other Asset Sale or Recovery Event, $100,000,000 in any fiscal year of the Borrowers and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11(g~~2.12(e). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11[Intentionally Omitted.] (e) ~~In the event the aggregate Outstanding Amount of Revolving Loans~~Subject to Section 2.18, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ 2.12 shall be ~~applied~~ applied, first, to the prepayment of the Tranche B Term Loans, second, to the prepayment of the Tranche C Term Loans and the Tranche D Term Loans pro rata among the Tranche C Term Loan Facility and the Tranche D Term Loan Facility based upon the remaining unpaid aggregate principal amounts thereof, third, to repay any amounts outstanding under the Revolving Credit Commitment (but without resulting in ~~accordance~~ a permanent reduction of the Revolving Credit Commitment) and, fourth, to such Borrower or such other Person as shall be lawfully entitled thereto. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of the Total Revolving Credit Commitments as so reduced (because L/C Obligations constitute a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in immediately available funds in a cash collateral account established with ~~Section 2.17(b~~the Administrative Agent for the benefit of the Secured Parties on terms and conditions satisfactory to the Administrative Agent (and the Borrowers hereby grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all L/C Obligations from time to time outstanding and all other Obligations). If at any time the Administrative Agent determines that any funds held in such cash collateral account are subject to any right or claim of any Person other than the Administrative Agent and the Secured Parties or that the total amount of such funds is less than the amount of such excess, the Borrowers shall, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in such cash collateral account, an amount equal to the excess of (a) the amount of such excess over (b) the total amount of funds, if any, then held in such cash collateral account that the Administrative Agent determines to be free and clear of any such right and claim. The application of any prepayment ~~of Loans~~ pursuant to Section 2.11 and this Section ~~2.11~~ 2.12 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 and this Section ~~2.11~~ 2.12 (except in the case of Revolving Credit Loans (unless the Revolving Credit Loans are being repaid in full and the Revolving Credit Commitments terminated) that are ~~ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment to the applicable Lender on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Regal Entertainment Group)

Mandatory Prepayments and Commitment Reductions. (a) If on any ~~Indebtedness~~ date the US Borrower or any of its Subsidiaries shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the receive Net Cash Proceeds ~~thereof~~ from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied ~~on the date of such issuance or incurrence~~ within three Business Days toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments4.06(d), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (; provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~4.06(d). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (~~b) ~~and (c) above), to~~ If on any date the ~~extent that the~~ US Borrower ~~Representative has determined in good faith that (i)~~ or any of ~~or all~~ its Subsidiaries shall receive Net Cash Proceeds from any Capital Market Transactions, then an amount equal to 75% of the Net Cash Proceeds ~~of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries~~ from such Capital Market Transaction (~~or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated~~ to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of extent such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as together with the ~~case may be, such distribution will be promptly effected and such distributed~~ Net Cash Proceeds ~~will~~ from prior Capital Market Transactions after the Original Closing Date are in excess of $200,000,000) shall be ~~promptly (and in any event not later than 10~~ applied within five Business Days ~~after~~ of such ~~distribution) applied (net of additional Taxes payable~~ issuance or ~~reserved against as a result thereof)~~ incurrence to the ~~repayment~~ prepayment of the Term Loans ~~pursuant~~ as set forth in Section 4.06(d); provided, that, notwithstanding the foregoing, any Net Cash Proceeds from any Capital Market Transactions of less than $200,000,000 shall be applied to ~~this Section 2.11~~prepay any amounts outstanding under the Revolving Credit Facility. (ec) In On the ~~event~~ Effective Date, if after giving effect to the reduction provided in Section 4.03(a)(i), (x) the aggregate ~~Outstanding Amount~~ Revolving Credit Exposures of all the Lenders exceeds the aggregate US Revolving ~~Loans, L/C Obligations and Swingline Loans at any time exceeds~~ Commitments or (~~the “Revolving Excess”~~y) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and aggregate principal amount of outstanding Mexican Revolving Loans ~~and Collateralize Letters of Credit to~~ exceeds $100,000,000, then the ~~extent~~ US Borrower or the Mexican Borrower, as applicable, shall repay the applicable Revolving Loans in amounts necessary to ~~remove such Revolving Excess~~be in compliance with this Agreement. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 4.06(a) or (b) shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~4.13(a)(iii). The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 4.06 shall be ~~made on~~ made, first, to ABR Loans and, second, to Eurodollar Loans in a ~~pro rata basis regardless of Type~~manner that minimizes amounts due under Section 4.11. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 4.06 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Navistar International Corp)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Term Loan Refinancing Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(e); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) ~~Subject~~ If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, the Asset Sale Percentage of such Net Cash Proceeds shall be applied within 10 Business Days after such date toward the prepayment of the Term Loans as set forth in Section 2.11(e); provided, that, notwithstanding the foregoing, no such prepayment shall be required to ~~clauses~~ the extent that the aggregate Net Cash Proceeds received from Asset Sales or Recovery Events is less than in any fiscal year is less than, $50,000,00065,000,000 (dit being understood that only amounts in excess of such thresholds shall be required to be applied to any prepayment); provided further that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(e); provided further that, notwithstanding the foregoing, such Net Cash Proceeds may be applied towards the prepayment or purchase of Pari Passu Secured Indebtedness to the extent the documentation governing such Indebtedness requires such a prepayment or purchase with Net Cash Proceeds from any Asset Sale or Recovery Event, in each case in an amount not to exceed the product of (x) the amount of such Net Cash Proceeds and (iy) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness and the denominator of which is the aggregate outstanding principal amount of Term Loans and all such other Indebtedness (provided that, in the event that the Borrower or applicable Restricted Subsidiary makes an offer to the holders of such Pari Passu Secured Indebtedness to prepay or purchase such Pari Passu Secured Indebtedness in an amount permitted under this Section ~~2.11~~2.11(b), ifto the extent that such offer is declined by holders of such Pari Passu Secured Indebtedness (the declined amount, the “Other Debt Declined Amount”), the Borrower shall be required to prepay Term Loans in an amount equal to such Other Debt Declined Amount as if the Other Debt Declined Amount were Net Cash Proceeds received on the final date by which such declining holders were required to give notice of their Other Debt Declined Amount). (c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.11(e) the excess of (gx) the ECF Percentage of ~~this Section 2.11, provided that no~~ such ~~prepayment shall be made if the~~ Excess Cash Flow ~~for~~ over (y) solely to the extent not funded with the proceeds of long-term Indebtedness or the proceeds of any issuance of Capital Stock, the aggregate amount of (1) all optional prepayments of Term Loans made during such Excess Cash Flow Period ~~is less than $10,000,000~~ pursuant to Section 2.10, (~~and, if~~ 2) all optional prepayments of Pari Passu Secured Indebtedness made during such Excess Cash Flow ~~exceeds~~ Period, (3) all prepayments of ABL Loans during such ~~amount~~Excess Cash Flow Period to the extent accompanied by a permanent reduction of the ABL Commitments, ~~only~~ and (4) all Loan purchases made during such ~~excess~~ Excess Cash Flow Period pursuant to Section 2.25 and Section 10.6(e) (provided that the aggregate amount of any such purchase shall be ~~subject to prepayment~~the amount of the Borrower’s cash payment in respect of such purchase). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the ~~fiscal year~~ Excess Cash Flow Period with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) ~~Notwithstanding anything to~~ On or after the ~~contrary~~ fifth anniversary of the ClosingFourth Amendment Effective Date, the Borrower shall pay in ~~this Agreement~~ cash all accrued interest and/or original issue discount (~~including clauses (b~~as determined for U.S. federal income tax purposes) ~~and (c) above),~~ to the extent necessary so that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected Initial Term Loans will not be ~~required to be applied to repay Loans at~~ classified as “applicable high yield discount obligations” under Section 163(i) of the ~~times set forth in this Section 2.11 but may be retained by~~ Code (or any successor provision). It is the ~~applicable Subsidiary or branch (~~intent of the ~~Borrowers hereby agreeing to cause~~ Borrower that payments on the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Initial Term Loans made pursuant to this Section ~~2.11~~2.11(d) be made such that Section 163(e)(5) of the Code (or any successor provision) would not apply to the Initial Term Loans and the provisions of this Agreement related to the Initial Term Loans shall be applied consistently therewith. The computations and determinations made by the Borrower for purposes of this Section 2.11(d) shall be binding upon each Lender. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment ~~of Loans~~ pursuant to this Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first, to ABR Loans, second to RFR Loans, and, third, to Term Benchmark Loans. Each prepayment of the Loans under this Section 2.11 ~~(except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) ~~Notwithstanding~~ With respect to any prepayment pursuant to this Section 2.11 of Initial Term Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the ~~other provision~~ amount of ~~this Section 2.11, if any~~ such prepayment ~~of Eurocurrency Loans~~ that is required to be made under this Section ~~2.11 other~~ 2.11. Any Lender may decline to accept all (but not less than ~~on the last day~~ all) of ~~the Interest Period applicable thereto, the applicable Borrower may, in~~ its ~~sole discretion, deposit the amount~~ share of any such prepayment ~~otherwise required to be made thereunder with~~ (the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory “Declined Amount”) by providing written notice to the Administrative Agent ~~until~~ no later than two Business Days after the ~~last day~~ date of such ~~Interest Period, at which time~~ L▇▇▇▇▇’s receipt of notice from the Administrative Agent ~~shall be authorized (without any further action by or~~ regarding such prepayment. If the Lender does not give a notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent ~~shall also be authorized (without any further action by~~ on or ~~notice~~ prior to ~~or from any Borrower or any other Loan Party) to apply~~ such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by second Business Day informing the Administrative Agent ~~pursuant~~ that it declines to ~~this clause (h) pending application~~ accept the applicable prepayment, then such Lender will be deemed to ~~any Eurocurrency Loans shall be held and applied to the satisfaction of~~ have accepted such ~~Eurocurrency Loans prior to any other application of such property as~~ prepayment. Such L▇▇▇▇▇’s Declined Amount may be ~~provided for herein~~retained by the Borrower. (ig) Notwithstanding ~~the foregoing~~ any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the ~~Borrower Representative’s option, outstanding Indebtedness that is secured~~ times provided in this Section 2.11 but may be retained by the ~~Collateral~~ applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (in the case of Excess Cash Flow, net of additional taxes payable or reasonably estimated to be payable as a ~~pari passu basis (determined without regard~~ result thereof) to the ~~control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory~~ prepayment of the Term Loans pursuant to this Section ~~2.11(b) and/or~~ 2.11 (~~c), and the amount of any~~ provided that no such prepayment ~~required~~ of the Term Loans pursuant to ~~be made hereunder~~ this Section 2.11 shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the ~~holders~~ case of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less (in the case of Excess Cash Flow) the amount of additional taxes that would ~~otherwise~~ have been ~~required to be applied~~ payable or reserved against if such ~~Other Applicable Indebtedness was not then outstanding~~Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).

Appears in 1 contract

Sources: Term Loan Credit Agreement (Upbound Group, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~6.02)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the ~~Term Loans~~ Loan as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.05(d). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset ~~Sale or any~~ Sale, Recovery Event ~~in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction~~ or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, Extraordinary Receipt then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date toward the prepayment of the Loan as set forth in Section 2.05(d); provided, that (i) the aggregate Net Cash Proceeds of Asset Sales, Recovery Events and Extraordinary Receipts that may be excluded from the foregoing requirement pursuant to ~~prepay outstanding Term Loans~~ a Reinvestment Notice shall not exceed $1,000,000 in ~~accordance with this Section 2.11; provided that, notwithstanding the foregoing,~~ any Fiscal Year and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding Term Loans~~ prepayment of the Loan as set forth in Section ~~2.11(g~~2.05(d). (c) If, at any time during any Fiscal Quarter, the Borrower receives Excess Payments under the Redemption Agreement, an amount equal to 100% of such Excess Payments shall be applied on the Payment Date immediately succeeding the last day of such Fiscal Quarter toward the prepayment of the Loan as set forth in Section 2.05(d). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant All amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments of the Loan made pursuant to this Section ~~2.11~~ 2.05 shall be applied to the ~~prepayment~~ Loan and to the principal repayment installments thereof in inverse order of ~~the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type~~maturity. Each prepayment of the ~~Loans~~ Loan under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.05 shall be accompanied by accrued interest to the date of such prepayment on the amount so prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Sanders Morris Harris Group Inc)

Mandatory Prepayments and Commitment Reductions. (ai) If any ~~Indebtedness~~ Capital Stock (other than stock, stock options and other equity based awards granted directly or indirectly to employees, officers, consultants or directors, directors' qualifying shares and stock issued to another Group Member or in connection with an acquisition by the Borrower or any of its Subsidiaries otherwise permitted by this Agreement) shall be ~~incurred~~ issued by any Group ~~Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction~~Member, an amount equal to ~~100~~50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance ~~or incurrence~~ toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.9(c). (bii) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow~~If the Senior Notes are issued by the Borrower, an amount equal to ~~(i)~~ 50% of the ~~ECF Percentage for such period~~ Net Cash Proceeds thereof shall be applied on the date of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied issuance toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.9(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (cb) ~~Subject to clauses (d) and (i) of this Section 2.11, if,~~ If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, an ~~aggregate~~ amount equal to ~~100~~50% of such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans as set forth in ~~accordance with this~~ Section ~~2.11~~2.9(c); ~~provided~~ provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~2.9(c). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~2.15(b). The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Gartner Inc)

Mandatory Prepayments and Commitment Reductions. (a) On the Termination Date, the Aggregate Commitment shall terminate and Toy Biz shall cause all Payment Obligations to be Fully Satisfied. (b) If, at any time and from time to time, the Aggregate Outstanding Extensions of Credit of all Banks then outstanding exceeds the Aggregate Commitment (including, without limitation, as a result of any permanent reduction in the Aggregate Commitment provided for in subsection 3.1 or this subsection 3.3) or the Borrowing Base then in effect, Toy Biz shall immediately repay the Loans and cash collateralize the L/C Obligations by the amount equal to such excess. (c) If Toy Biz or any of its Subsidiaries shall receive any Net Cash Proceeds as a result of the sale or issuance of equity securities (other than in connection with (i) the IPO and (ii) stock options outstanding on the date hereof or hereafter issued in connection with the Toy Biz Stock Option Plan) or the incurrence of Indebtedness ~~shall be incurred by any Group Member~~ (other than any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in ~~accordance with Section 7.2~~reliance upon the provisions of subsection 7.1), ~~concurrently with~~then the Aggregate Commitment shall immediately be reduced (and, to the extent that a Default or Event of Default is then continuing, the Loans shall be repaid and ~~as a condition to closing of such transaction,~~ the L/C Obligations shall be cash collateralized) by an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)Proceeds. (d) ~~Notwithstanding anything to~~ If Toy Biz or any of its Subsidiaries shall receive any Net Cash Proceeds from the ~~contrary~~ sale, lease or other disposition by Toy Biz or any of its Subsidiaries of any assets, other than assets sold in ~~this Agreement~~ reliance upon the provisions of subsection 7.5, then the Aggregate Commitment shall immediately be reduced (~~including clauses (b) and (c) above)~~and, to the extent that ~~the Borrower Representative has determined in good faith that (i) any~~ a Default or Event of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequencesDefault is then continuing, the ~~portion of such Net Cash Proceeds or Excess Cash Flow so affected will not~~ Loans shall be ~~required~~ repaid and the L/C Obligations shall be cash collateralized) by an amount equal to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In If Toy Biz or any of its Subsidiaries shall receive any payments of principal under the ~~event~~ Colorforms Note, then the ~~aggregate Outstanding Amount~~ Aggregate Commitment shall immediately be reduced (and, to the extent that a Default or Event of ~~Revolving Loans~~Default is then continuing, the Loans shall be repaid and the L/C Obligations ~~and Swingline Loans at any time exceeds (the “Revolving Excess”~~shall be cash collateralized) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or amount equal to such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepaymentpayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Toy Biz Inc)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be ~~incurred~~ issued or Incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be incurred by any such Person~~ Incurred in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or ~~incurrence~~ Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d); PROVIDED, HOWEVER, that if any such subordinated Indebtedness in an aggregate principal amount not to exceed $100,000,000 shall be issued or Incurred by the Borrower on terms and conditions (including, without limitation, terms of subordination) satisfactory to the Required Lenders, as evidenced by their prior written consent, which consent shall not be unreasonably withheld, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d). (b) Unless the Required Prepayment Lenders shall otherwise agree, if on any date, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d); PROVIDED that, notwithstanding the foregoing, (i) the Borrower may exclude from the requirements of this paragraph the first $7,500,000 of aggregate Net Cash Proceeds from Asset Sales and Recovery Events and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, the Borrower shall apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in ~~clause (g~~Section 2.10(d) on a date no later than five days after the earlier of ~~this Section 2.11. (b) Subject to clauses (d) and~~ (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.10 shall be ~~applied~~ applied, FIRST, to the prepayment of the Term Loans and, SECOND, to reduce permanently the Revolving Credit Commitments; PROVIDED that no Excess Cash Flow shall be applied to reduce the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Agent for the benefit of the Lenders on terms and conditions satisfactory to the Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.10 shall be made ~~on a pro rata basis regardless of Type~~first to ABR Loans and second to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.10 (except in the case of Revolving Credit Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Friendlys Restaurants Franchise Inc)

Mandatory Prepayments and Commitment Reductions. (a) If on any ~~Indebtedness~~ date the US Borrower or any of its Subsidiaries shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the receive Net Cash Proceeds ~~thereof~~ from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied ~~on the date of such issuance or incurrence~~ within three Business Days toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments4.06(d), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (; provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~4.06(d). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (~~b) ~~and (c) above), to~~ If on any date the ~~extent that the~~ US Borrower ~~Representative has determined in good faith that (i)~~ or any of ~~or all~~ its Subsidiaries shall receive Net Cash Proceeds from any Capital Market Transactions, then an amount equal to 75% of the Net Cash Proceeds ~~of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries~~ from such Capital Market Transaction (~~or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated~~ to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of extent such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as together with the ~~case may be, such distribution will be promptly effected and such distributed~~ Net Cash Proceeds ~~will~~ from prior Capital Market Transactions after the Original Closing Date are in excess of $200,000,000) shall be ~~promptly (and in any event not later than 10~~ applied within five Business Days ~~after~~ of such ~~distribution) applied (net of additional Taxes payable~~ issuance or ~~reserved against as a result thereof)~~ incurrence to the ~~repayment~~ prepayment of the Term Loans ~~pursuant~~ as set forth in Section 4.06(d); provided, that, notwithstanding the foregoing, any Net Cash Proceeds from any Capital Market Transactions of less than $200,000,000 shall be applied to ~~this Section 2.11~~prepay any amounts outstanding under the Revolving Credit Facility. (ec) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess[Reserved]. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 4.06(a) or (b) shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~4.13(a)(iii). The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 4.06 shall be ~~made on~~ made, first, to ABR Loans and, second, to Eurodollar Loans in a ~~pro rata basis regardless of Type~~manner that minimizes amounts due under Section 4.11. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 4.06 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Navistar International Corp)

Mandatory Prepayments and Commitment Reductions. (a) If In the event the Consolidated Leverage Ratio then exceeds 3.00:1.00, if any ~~Indebtedness~~ Capital Stock shall be ~~incurred~~ issued by any Group Member (other than any ~~Indebtedness permitted~~ Capital Stock sold to ~~be incurred by~~ management of any ~~such Person~~ Group Member in ~~accordance~~ connection with ~~Section 7.2~~option or other compensation arrangements or issued to another Group Member)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to ~~100~~50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.12(d) not later than the Business Day following receipt of such Net Cash Proceeds. (gb) ~~of this Section 2.11~~In the event the Consolidated Leverage Ratio then exceeds 3.00:1.00, ~~provided that no such prepayment~~ if any Indebtedness shall be ~~made if~~ incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 50% of the ~~Excess~~ Net Cash ~~Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess~~ Proceeds thereof shall be ~~subject to prepayment). Each such~~ applied toward the prepayment ~~shall be made on a date (an “Excess Cash Flow Application Date”~~of the Term Loans as set forth in Section 2.12(d) no not later than 10 the Business ~~Days after the date on which the financial statements~~ Day following receipt of ~~UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which~~ such ~~prepayment is made, are required to be delivered to the Lenders~~Net Cash Proceeds. (c) ~~Subject to clauses (d) and (i) of this Section 2.11, if,~~ If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five~~ toward the prepayment of the Term Loans as set forth in Section 2.12(d) not later than the Business ~~Days~~ Day following receipt of such ~~date to prepay outstanding Term Loans in accordance with this Section 2.11~~Net Cash Proceeds; ~~provided~~ provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $15,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~2.12(d). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share application of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 2.12 shall be ~~applied~~ made, first, to ~~the prepayment of the Term~~ ABR Loans and, second, to Eurodollar Loans, in each case in accordance with Section ~~2.17(b~~2.18(b)~~. The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type~~. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) ~~Notwithstanding~~ If at any time the US Dollar Amount of the ~~other provision~~ Total Revolving Extensions of ~~this Section 2.11~~Credit or the US Dollar Amount of the L/C Obligations exceed 105% of the Total Revolving Commitments or the L/C Commitment, if respectively, as a result of the fluctuation of currency values, the Borrower shall immediately repay the aggregate outstanding Revolving Loans or reimburse any ~~prepayment~~ drawings under Letters of ~~Eurocurrency Loans is~~ Credit, to the extent required to ~~be made under this Section 2.11 other than on the last day~~ eliminate such excess. If any such excess remains after repayment in full of the ~~Interest Period applicable thereto~~aggregate outstanding Revolving Loans and reimbursement in full of any drawings under Letters of Credit, the ~~applicable~~ Borrower ~~may~~shall provide cash collateral for Letters of Credit, to the extent required to eliminate such excess, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms form and substance reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereinAgent. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Serologicals Corp)

Mandatory Prepayments and Commitment Reductions. (a) If Unless ----------------------------------------------- the Required Prepayment Lenders shall otherwise agree, if any Capital Stock or Indebtedness shall be ~~incurred~~ issued or Incurred by the Company or any ~~Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing~~ of ~~such transaction~~its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or ~~incurrence~~ Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of~~ Section 2.11(d); provided that no such prepayment and reduction shall be -------- required pursuant to this Section ~~2.11~~2.11(a) with respect to (i) Designated Equity Amounts, (ii) any such Net Cash Proceeds from the issuance of Capital Stock which is applied within five Business Days after the receipt thereof by the Company and its Subsidiaries to repay Indebtedness Incurred in reliance upon the provisions of Section 7.2(i) or (j) hereof, (iii) other than to the extent set forth therein, Indebtedness Incurred in accordance with Section 7.2 and (iv) up to $10,000,000 in aggregate Net Cash Proceeds from the issuance of Capital Stock by the Borrower after the Closing Date. (b) ~~Subject to clauses (d)~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Company or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d); provided, -------- that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of ~~this~~ Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11~~2.11(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash ----------- Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the --------------------- date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section 2.11 shall be ~~applied~~ applied, first, to ----- the prepayment of the Term Loans (pro rata among the Tranche A Term Loans and --- ---- the Tranche B Term Loans based upon the outstanding principal amount thereof) and, second, to reduce permanently the Revolving Credit Commitments. Any such ------ reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate -------- principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. ~~The~~ Subject to the immediately preceding sentence, the application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first to ABR Loans and second to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 (except in the case of Revolving Credit Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (ie) Notwithstanding the ~~foregoing~~ provisions of ~~this~~ Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c2.11(d), ~~and the amount~~ 50% of any ~~such prepayment required to be made hereunder~~ Excess Note Proceeds shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay the Tranche A Term Loans ~~in accordance~~ and 50% of any Excess Note Proceeds shall be applied to prepay the Tranche B Term Loans, with such prepayment of the ~~terms hereof (~~Tranche B Term Loans being applied ratably to the ~~extent~~ remaining installments thereof and with such ~~Net Cash~~ prepayment of the Tranche A Term Loans being applied to prepay each installment thereof which is due on a date occurring during a period set forth below by the percentage of such Excess Note Proceeds ~~or Excess Cash Flow would otherwise have been required to~~ set forth opposite such period: Period Percentage ------- ---------- September 30, 1998 through September 29, 1999 7.50% September 30, 1999 through September 29, 2000 6.25% September 30, 2000 through September 29, 2002 3.75% September 30, 2002 and thereafter 2.50% (f) All unpaid amounts owing hereunder shall be ~~applied if such Other Applicable Indebtedness was not then outstanding)~~due and payable on October 27,

Appears in 1 contract

Sources: Credit Agreement (Details Inc)

Mandatory Prepayments and Commitment Reductions. (a) If on any ~~Indebtedness shall be incurred by~~ date any Group Member ~~(other than~~ shall receive Net Cash Proceeds from any ~~Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with~~Asset Sale or Recovery Event, and as the Consolidated Leverage Ratio of the Borrower for the most recently ended four fiscal quarters is greater than 2.50 to 1.00, then, unless a ~~condition to closing of such transaction~~Reinvestment Notice shall be delivered in respect thereof, an amount equal to ~~100~~50% of ~~the~~ such Net Cash Proceeds ~~thereof~~ shall be applied on ~~the~~ such date ~~of such issuance or incurrence toward~~ to the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments2.9(b), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied to ~~prepay~~ the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~2.9(b). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (~~b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section ~~2.11~~ 2.9 shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~2.15(b). Subject to such Section 2.15(b), the application of any prepayment required to be made pursuant to Section 2.9(a) shall be applied to Term Loans under any Facility selected by the Borrower. The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.9 with respect to a Facility shall be made on a pro rata basis ~~regardless~~ to the then outstanding Term Loans being repaid irrespective of ~~Type~~whether such outstanding Term Loans are ABR Loans or Eurodollar Loans. Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (~~2.9 with respect to ~~the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ a Facility shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Gartner Inc)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Indebtedness shall be issued or incurred by Holdings, the Borrower or any ~~Group Member~~ of its Restricted Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 and any proceeds of senior subordinated notes to the extent applied to repay or repurchase the Subordinated Facility, the Wind▇ ▇▇▇▇ ▇▇▇ior Subordinated Notes, the Wind▇ ▇▇▇▇ ▇▇▇ordinated Seller Note or the Doan▇ ▇▇▇ior Notes)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(f). (b) ~~Subject to clauses (d) and (i) of this Section 2.11~~Unless the Required Prepayment Lenders shall otherwise agree, ~~if, for~~ if on any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ date the Borrower ~~Representative and to the extent not funded with (x) the proceeds~~ or any of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the its Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event ~~in excess of~~ (excluding (i) the ~~greater~~ sale of ~~$2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions~~ assets securing IDB financings and (ii) ~~with respect~~ purchase money indebtedness used to ~~all other Net Cash Proceeds not excluded pursuant to~~ repay the ~~preceding~~ sales in clause (i~~), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year,~~ ) above) then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.11(f); ~~provided~~ provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 in the aggregate (exclusive of any reinvestment in IDB) and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~accordance~~ Section 2.11(f). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 1999, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.17(b~~2.11(f). ~~The application of any~~ Each such prepayment ~~of Loans pursuant to this Section 2.11~~ and commitment reduction shall be made on a ~~pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11~~ date (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or an "Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Doane Pet Care Enterprises Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by any ~~Group Member (other than~~ member of the Restricted Group, or if any ~~Indebtedness permitted to~~ Additional Subordinated Debt shall be ~~incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction~~incurred, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the ~~prepayment~~ reduction of the ~~Term Loans~~ Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.6(d). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for~~ If on any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option~~ date any member of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary Group shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100then 80% of such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding Term Loans~~ toward the reduction of the Revolving Commitments as set forth in Section 2.6(d) unless the Required Lenders waive the same in accordance with Section 10.1. (c) On (i) any date on which the outstanding Revolving Extensions of Credit exceed the aggregate Revolving Commitments or (ii) any member of the Restricted Group shall receive Net Cash Proceeds from a Recovery Event and, in the case of this ~~Section 2.11; provided that~~clause (ii), ~~notwithstanding~~ no Reinvestment Notice shall have been delivered in respect thereof, the ~~foregoing~~Borrower will apply the amount of such excess (in the case of clause (i)) or 50% of such Net Cash Proceeds (in the case of clause (ii)) to repay Loans and, to the extent of any such amount remaining after repayment of all outstanding Loans (because of outstanding L/C Obligations), replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. On each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the prepayment of the Loans, replacement of outstanding ~~Term Loans~~ Letters of Credit and collateralization of L/C Obligations as set forth in ~~Section 2.11(g~~the first sentence of this subsection (c). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory prepayments~~ Revolving Commitment reductions made pursuant to ~~this Section 2.11~~ subsections (a) and (b) above or subsection (e) below shall be applied to reduce permanently the ~~prepayment of~~ Revolving Commitments unless the ~~Term Loans~~ Required Lenders waive the same in accordance with Section ~~2.17(b~~10.1. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof). , the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. (e) The Revolving Commitments shall be reduced in the manner specified in clause (d) above automatically and without further act by any Person on any date on which the Reference Amount (as defined in the Master Lease) is reduced pursuant to clause (i) of the definition thereof. (f) The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to COF Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence prepaid and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereindue under Section 2.15. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Caribou Coffee Company, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any ~~Indebtedness~~ debt securities or instruments of the Borrower or any of its Subsidiaries shall be ~~incurred by~~ issued or sold or the Borrower or any ~~Group Member (other than~~ of its Subsidiaries shall incur any Indebtedness ~~permitted to be~~ (except any debt securities or instruments issued or any Indebtedness incurred ~~by any such Person~~ in accordance with Section ~~7.2), concurrently with, and~~ 7.2 as ~~a condition to closing of such transaction,~~ in effect on the Closing Date) an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause~~ paragraph (gc) of this Section ~~2.11~~2.9. (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for~~ If on any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ date the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any ~~Restricted Subsidiary~~ of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or from any Recovery Event ~~in excess~~ (other than, if no Event of ~~(i) the greater of $2,000,000~~ Default shall have occurred and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant be continuing, to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith extent that such Net Cash Proceeds ~~shall~~ are to be ~~reinvested~~ used to restore or replace the assets in ~~its business (~~respect of which such Recovery Event occurred within six months from the date of such Recovery Event, as certified by a “Responsible Officer of the Borrower pursuant to a Reinvestment ~~Event”~~Notice), ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~accordance with~~ paragraph (c) of this Section ~~2.11~~2.9; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to toward the prepayment of the Term Loans ~~in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment~~ and the reduction of the ~~Loans under this Section 2.11~~ Revolving Credit Commitments as set forth in paragraph (~~except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid~~c) ~~and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision~~ of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein2.9. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Fpa Medical Management Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness ~~shall be incurred by any Group Member~~ (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~6.02), ~~concurrently with, and as a condition to closing of such transaction~~shall be issued or incurred by any Borrower, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.09(c). (b) ~~Subject to clauses (d) and (i) of this Section 2.11~~If on any date any Borrower shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness delivered in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such periodthereof, such ~~amount~~ Net Cash Proceeds shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, applied on ~~the relevant Excess Cash Flow Application Date, be applied~~ such date toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.09(c); provided, ~~provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and~~that, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the ~~greater~~ aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $~~2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period~~ 500,000 in any ~~single transaction or series of related transactions~~ Fiscal Year and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.11(g~~2.09(c). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to paragraph (a) or (b) of this Section ~~2.11~~ 2.09 shall be applied to ~~the prepayment of~~ the Term Loans in accordance with Section ~~2.17(b~~2.15(b)~~. The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type~~. Each prepayment of the Loans ~~under~~ pursuant to paragraph (a) or (b) of this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.09 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hd) ~~Notwithstanding~~ If for any of reason the ~~other provision of this Section 2.11, if~~ Aggregate Outstanding Revolving Credit at any ~~prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on~~ time exceeds the ~~last day of the Interest Period applicable thereto~~Total Revolving Commitments then outstanding, the ~~applicable Borrower may, in its sole discretion, deposit~~ Borrowers shall immediately prepay the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Revolving Loans in ~~accordance with this Section 2.11 (determined as of the date~~ an aggregate amount equal to such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereinexcess. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (USMD Holdings, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If If, at any time during the Revolving Credit Commitment Period, the sum of the aggregate outstanding Revolving Extensions of Credit of all Revolving Credit Lenders exceeds the lesser of (i) the Borrowing Base and (ii) the aggregate Revolving Credit Commitments then in effect, in each case, minus any Reserves the Borrowers shall, without notice or demand, immediately prepay, in accordance with this Section, the Revolving Credit Loans and the Swing Line Loans in an aggregate principal amount equal to such excess, together (except in the case of Revolving Credit Loans which are Base Rate Loans and Swing Line Loans) with interest accrued to the date of such payment or prepayment; provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. (b) Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock shall be issued, or Indebtedness incurred, by any of the Borrowers or any of their Subsidiaries (excluding any Indebtedness ~~shall be~~ incurred ~~by any Group Member (other than any Indebtedness permitted to be incurred by any such Person~~ in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within one Business Day of the date of such issuance or incurrence toward the prepayment of the Term Loans and outstanding Revolving Credit Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.12(f). (bc) ~~Subject~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date any of the Borrowers or any of their Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, such Net Cash Proceeds shall be applied within one Business Day of such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(f) or Section 2.12(g), as applicable; provided, that, notwithstanding the foregoing, (i) if no Default or Event of Default shall be in existence on the date of receipt by the Borrowers or any of their Subsidiaries thereof, the Net Cash Proceeds of Recovery Events may be excluded from the foregoing requirement if on the date of the Borrowers' receipt thereof they deliver a Reinvestment Notice in respect thereof to ~~clauses~~ the Administrative Agent and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(g); provided, further, that the Net Cash Proceeds of Recovery Events shall be applied to reduce the outstanding principal balance of the Revolving Credit Loans (and not to the reduction of the Revolving Credit Commitments) and upon such application, the Administrative Agent shall establish a Reserve against the Borrowing Base in an amount equal to the amount of such proceeds so applied. Thereafter, such funds shall be made available to the applicable Borrower to provide funds to replace, restore or rebuild the Collateral as follows: (A) the Borrower Representative shall request a Revolving Credit Loan to be made to such Borrower in the amount requested to be released; (B) so long as the conditions in Section 5.2 have been met, the Revolving Credit Lenders shall make such Revolving Credit Loan; and (C) the Reserve established with respect to such Net Cash Proceeds of Recovery Events shall be reduced by the amount of such Revolving Credit Loan. (d) ~~and~~ So long as no Default or Event of Default shall be in existence on the date of the Borrowers' receipt thereof, the proceeds of any asset sale in respect of the Designated Facilities shall not be required to be applied toward repayment of Loans or reduction of Commitments. (ie) ~~of this Section 2.11~~Unless the Required Prepayment Lenders shall otherwise agree, if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrowers commencing with the fiscal year ending September 30, 1999, there shall be Excess Cash Flow, ~~an amount equal to (i)~~ the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, Borrowers shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply 100% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g)~~ Section 2.12(f); provided, however, notwithstanding the foregoing, so long as after giving effect to the proposed redemptions or prepayments, the Availability would be equal to or greater than $20,000,000, 50% of ~~this Section 2.11, provided that no such prepayment shall be made if the~~ Excess Cash Flow ~~for~~ may be used to redeem or prepay the Senior Secured Notes in an amount not to exceed $3,000,000 in any ~~Excess Cash Flow Period~~ fiscal year and $5,000,000 in the aggregate while this Agreement is ~~less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment)~~outstanding. Each such prepayment of the Loans and reduction of Revolving Credit Commitments shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ Harvard referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excessactually delivered. (f) ~~The Borrower Representative~~ Any prepayments made by the Borrowers pursuant to paragraphs (b), (c) or (e) above (other than any prepayment with insurance proceeds, which shall ~~deliver~~ be applied in accordance with paragraph (g) below) shall be applied as follows: first, to fees and reimbursable expenses of the Administrative Agent ~~notice~~then due and payable pursuant to any of the Loan Documents, ~~substantially~~ second, to interest then due and payable the Term Loans, third, to prepay the scheduled installments of the Term Loans in inverse order of maturity, until the Term Loans shall have been prepaid in full, fourth, to interest then due and payable on the Swing Line Loans, fifth, to the principal balance of the Swing Line Loans outstanding until the same shall have been repaid in full, sixth, to interest then due and payable on Revolving Credit Loans, seventh, to the principal balance of Revolving Credit Loans outstanding until the same shall have been paid in full, and eighth, to any L/C Obligations to provide cash collateral therefor in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting manner set forth in ~~reasonable detail~~ Section 3.3, until all such L/C Obligations have been fully cash collateralized in the ~~calculation of the amount of such prepayment~~manner set forth in said Section 3.3. (g) ~~Amounts to~~ Prepayments from insurance proceeds in accordance with Section 2.12(c) shall be applied ~~in connection with any mandatory prepayments made pursuant~~ as follows: insurance proceeds from casualties or losses to ~~this Section 2.11~~ cash or Inventory shall be applied, first, to the Swing Line Loans and, second, to the Revolving Credit Loans; insurance proceeds from casualties or losses to Equipment and Real Estate shall be applied to ~~the prepayment~~ scheduled installments of the Term Loan in inverse order of maturity. If the insurance proceeds received exceed the outstanding principal balances of the Loans ~~in accordance with Section 2.17(b)~~or if the precise amount of insurance proceeds allocable to Inventory as compared to Equipment and real estate are not otherwise determined, the allocation and application of those proceeds shall be determined by the Administrative Agent, subject to the approval of Required Lenders. The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section ~~2.11~~ (except in the case of Revolving Credit Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Harvard Industries Inc)

Mandatory Prepayments and Commitment Reductions. (ai) If at any ~~Indebtedness~~ time the outstanding balance of the Revolving Loan exceeds the lesser of (A) the Maximum Amount and (B) the Revolving Credit Availability, less, in each case, the outstanding Swing Line Loan at such time, Borrower shall immediately repay the outstanding Revolving Credit Advances to the extent required to eliminate such excess. If any such excess remains after repayment in full of the aggregate outstanding Revolving Credit Advances, Borrower shall provide cash collateral for the Letter of Credit Obligations in the manner set forth in Annex B to the extent required to eliminate such excess. (A) Immediately upon receipt by any Credit Party of proceeds of any asset disposition (including condemnation proceeds, but excluding proceeds of asset dispositions permitted by Section 6.8(a) or (b)), Borrower shall prepay the Loans in an amount equal to the amount by which all such proceeds, net of (1) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower in connection therewith (in each case, paid to non- Affiliates), (2) transfer taxes, (3) amounts payable to holders of senior Liens (to the extent such Liens constitute Permitted Encumbrances hereunder), if any, and (4) an appropriate reserve for income taxes in accordance with GAAP in connection therewith, exceeds one million five hundred thousand dollars ($1,500,000) in any Fiscal Year; provided that such prepayments shall be ~~incurred~~ made in increments of $100,000 only (any amount not paid as a result of this requirement shall be accumulated and paid when the aggregate amount of such accumulation shall meet the required prepayment increment). For the purposes of this Section 1.3(b)(ii)(A) the Credit Parties shall not be deemed to have received proceeds of any disposition permitted pursuant to Section 6.8(c) or (d) to the extent that such proceeds are redeployed to replace the asset disposed of in the manner and within the time period provided in such sections. To the extent that such proceeds are not so redeployed within such time period, such proceeds shall be deemed received by the Credit Parties upon the expiration of such period. Any such prepayment shall be applied in accordance with clause (c) below. (B) Immediately upon receipt by any ~~Group Member (other than~~ Credit Party of proceeds of any ~~Indebtedness permitted to be incurred by~~ sale of Stock or of all or substantially all of the assets of any ~~such Person~~ Subsidiary or Permitted Joint Venture in accordance with Section ~~7.2~~6.8(e), ~~concurrently with, and as a condition to closing of such transaction,~~ the Borrower shall prepay the Loans in an amount equal to ~~100%~~ all such proceeds, net of: (i) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower in connection therewith (in each case, paid to non-Affiliates), (ii) transfer taxes, (iii) amounts payable to holders of senior Liens (to the extent such Liens constitute Permitted Encumbrances hereunder), if any, and (iv) an appropriate reserve for income taxes in accordance with GAAP in connection therewith. (iii) If Borrower issues Stock or any Indebtedness, other than Stock or Indebtedness issued as a part of the ~~Net Cash Proceeds thereof~~ consideration for a Permitted Acquisition and other than Indebtedness permitted pursuant to Section 6.3, then no later than the Business Day following the date of receipt of the proceeds thereof, Borrower shall prepay the Revolving Loan in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such prepayment shall be applied in accordance with clause (c) below. (iv) Commencing on September 30, 2000 (the "Amortization Commencement Date") and on the last business day of each Fiscal Quarter thereafter until the Commitment Termination Date, the Borrower shall repay the Revolving Loan outstanding in quarterly installments equal to the lesser of: (x) the percentage of the aggregate principal amount of the Revolving Loan outstanding on the Amortization Commencement Date set forth opposite the period in which such fiscal quarter ends below and (y) the amount of Revolving Loan outstanding concurrent on the date of such ~~issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11.~~installment: Period Percentage ------ ---------- September 30, 2000 7.50% through September 29, 2002 September 30, 2002 10.0% and thereafter (bv) ~~Subject~~ Notwithstanding anything else in this Agreement to ~~clauses (d) and (i) of this Section 2.11~~the contrary, ~~if, for any Excess Cash Flow Period, there~~ all Obligations shall be ~~Excess Cash Flow~~due and payable, ~~an amount equal to (i) the ECF Percentage for such period~~ and all Letters of ~~such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness”~~ Credit (or ~~a comparable caption~~standby guarantees therefor) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shallcancelled or returned or cash collateralized in accordance with Annex B, on the ~~relevant Excess Cash Flow Application~~ Commitment Termination Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (American Physician Partners Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than any Permitted Refinancing Indebtedness in respect of the Facilities)~~, concurrently with, and as a condition to closing of such transaction~~), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(d); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) Subject to ~~clauses (d~~Sections 2.11(g) and 2.11(j), if on any date any Group Member shall receive Net Cash Proceeds in excess of $7,500,000 (ithe “Net Cash Proceeds Threshold”) from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of ~~this~~ such Net Cash Proceeds in excess of the Net Cash Proceeds Threshold shall be required to be applied to prepay Subject Term Loans as set forth in Section ~~2.11~~2.11(d) within five Business Days after such date; provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Subject Term Loans as set forth in Section 2.11(d). (c) Subject to Section 2.11(j), if, for any ~~Excess Cash Flow Period~~fiscal year of the Parent Borrower commencing with the first full fiscal year after the Closing Date, there shall be Excess Cash Flow, ~~an amount equal to (i)~~ the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the~~ Parent Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply toward the prepayment of the Subject Term Loans as set forth in ~~clause~~ Section 2.11(d) the excess of (gx) the ECF Percentage of such Excess Cash Flow over (y) the sum of (I) the aggregate principal amount of any (x) Term Loans and Revolving Loans (including under any Incremental Facilities) prepaid pursuant to Section 2.10, plus (II) the aggregate principal amount of any Incremental Equivalent Debt, Replacement Loans and/or any other Indebtedness permitted to be incurred pursuant to Sections 7.2 and 7.3 in each case to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Term B Loans, voluntarily prepaid, repurchased, redeemed or otherwise retired (or contractually committed to be prepaid, repurchased, redeemed or otherwise retired), plus (III) the amount of any reduction in the outstanding amount of any Term Loans, Incremental Equivalent Debt, Replacement Loan and/or any other Indebtedness permitted to be incurred pursuant to Sections 7.2 and 7.3 in each case to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Term B Loans, resulting from any purchase or assignment made in accordance with Sections 2.25 and 10.6(e) of this Agreement (including in connection with any Dutch Auction) (with respect to Term Loans) and any equivalent provisions with respect to any such Incremental Equivalent Debt, such Replacement Loans and/or such other Indebtedness, but only to the extent of the actual price paid in cash by the applicable Borrower in connection with such purchase or assignment, in each case of clauses (I)-(III), (A) excluding any such payments, prepayments and expenditures made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section ~~2.11~~2.11(c) in the prior fiscal year, (B) in the case of any prepayment of revolving Indebtedness, only to the extent accompanied by a permanent reduction in the relevant commitments and (C) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of other long-term funded Indebtedness (other than revolving Indebtedness) of the Parent Borrower or its Restricted Subsidiaries; provided ~~that no such~~ that, with respect to each fiscal year, a prepayment shall only be ~~made~~ required under this Section 2.11(c) if the ~~Excess Cash Flow~~ applicable prepayment under this Section 2.11(c) for ~~any Excess Cash Flow~~ such fiscal year exceeds the greater of (i) $5,750,000 and (ii) 5.0% of Consolidated EBITDA for the Applicable Reference Period ~~is less than $10,000,000~~ (~~and, if Excess Cash Flow exceeds such amount,~~ the “ECF Threshold”); provided further that only ~~such~~ amounts in excess of the ECF Threshold shall be ~~subject~~ required to ~~prepayment~~be applied to prepay Subject Term Loans under this Section 2.11(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Parent Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the ~~Lenders~~Lenders and (ii) the date such financial statements are actually delivered. (cd) Subject to ~~clauses (d~~Sections 2.11(g) and 2.11(j), amounts to be applied in connection with prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Subject Term Loans in accordance with Section 2.17(b). The application of any prepayment pursuant to this Section 2.11 shall be made first, to ABR Loans and, second, to Term Benchmark Loans. Each prepayment of the Subject Term Loans under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (ie) With respect to any prepayment pursuant to this Section 2.11 of Subject Term Loans and, unless otherwise specified in the applicable Incremental Facility Amendment, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Parent Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment that is required to be made under this Section 2.11. Any Lender may decline to accept all (but not less than all) of its share of any such prepayment (the “Declined Amount”) by providing written notice to the Administrative Agent no later than two Business Days after the date of such L▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. If the Lender does not give a notice to the Administrative Agent on or prior to such second Business Day informing the Administrative Agent that it declines to accept the applicable prepayment, then such Lender will be deemed to have accepted such prepayment. Such L▇▇▇▇▇’s Declined Amount may be retained by the Parent Borrower. (f) Notwithstanding any other provisions of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent ~~that the Borrower Representative has determined in good faith that (i)~~ any of or all of the Net Cash Proceeds of any Asset Sale or by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to ~~Subsidiaries (or branches of~~ Foreign Subsidiaries) , are prohibited or delayed by any applicable local law ~~from being repatriated to the relevant Borrower(s)~~ (including ~~as a result of~~ financial ~~assistance and~~ assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the ~~relevant directors),~~ directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Parent Borrower or any applicable Domestic Subsidiary or if the Parent Borrower has determined in good faith that repatriation of any such amount to the Parent Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (~~ii) such repatriation would present~~ including a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution acceleration of the ~~relevant amounts~~ point in time when such earnings would ~~reasonably~~ otherwise be ~~expected~~ taxed) with respect to ~~result in material adverse Tax consequences~~such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to ~~repay~~ prepay the Term Loans at the times ~~set forth~~ provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary ~~or branch (the Borrowers hereby agreeing to cause~~ so long, but only so long, as the applicable ~~Subsidiary~~ local law will not permit repatriation or ~~branch~~ the passing on to ~~promptly take commercially reasonable actions to permit~~ or otherwise using for the benefit of the Parent Borrower or the applicable Domestic Subsidiary, or the Parent Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation ~~without violating~~ of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or ~~incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if~~ the Parent Borrower determines in good faith such repatriation ~~becomes permitted under such applicable local law,~~ would ~~not present a material risk as described in clause (ii) above, or~~ no longer have such material adverse ~~Tax consequences would result from such distribution, as the case may be~~tax consequences, such ~~distribution~~ repatriation will be promptly effected and such ~~distributed~~ repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than 10 five Business Days after such ~~distribution~~repatriation) applied (net of additional ~~Taxes~~ taxes payable or ~~reserved against~~ reasonably estimated to be payable as a result thereof) to the ~~repayment~~ prepayment of the Term Loans pursuant to this Section ~~2.11.~~ 2.11 (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if provided that no such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term ~~Loans in accordance with Section 2.17(b). The application of any prepayment of~~ Loans pursuant to this Section 2.11 shall be ~~made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except~~ required in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Parent Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Parent Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Parent Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would ~~otherwise~~ have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary). (g) Additional Pari Passu Indebtedness may share in any mandatory prepayment under this Section 2.11 (other than any mandatory prepayment under Section 2.11(a) with respect to Permitted Refinancing Indebtedness in respect of the Facilities) on a ratable basis (but, for the avoidance of doubt, not on a greater than pro rata basis) to the extent such prepayment is required under the terms of such Additional Pari Passu Indebtedness and such prepayment shall reduce, without duplication, the amount of any prepayment of Term Loans otherwise required under this Section 2.11. (h) If for any reason (other than currency fluctuations) the aggregate Revolving Extensions of Credit of all Lenders under the Revolving Facility at any time exceeds the aggregate Revolving Commitments under the Revolving Facility, promptly following written notice from the Administrative Agent to the Parent Borrower, the applicable Borrower shall prepay or cause to be ~~applied~~ promptly prepaid the Revolving Loans or cash collateralize the outstanding Letters of Credit in an aggregate amount equal to such excess. (i) On the last Business Day of each fiscal quarter, or at such other time as is reasonably determined by the Administrative Agent, the Administrative Agent shall determine the Dollar Equivalent of the aggregate outstanding Revolving Extensions of Credit. If, at the time of such determination, the aggregate outstanding Revolving Extensions of Credit exceed the Revolving Commitments then in effect by 5% or more, then within five Business Days of written notice to the Parent Borrower, the applicable Borrower shall prepay Revolving Loans or cash collateralize the outstanding Letters of Credit in an aggregate principal amount at least equal to such excess; provided that the failure of the Administrative Agent to determine the Dollar Equivalent of the aggregate outstanding Revolving Extensions of Credit as provided in this Section 2.11(i) shall not subject the Administrative Agent to any liability hereunder. (j) Notwithstanding anything in this Section 2.11 or otherwise herein to the contrary, as of the Tenth Amendment Effective Date, no such prepayments of Term Loans pursuant to Section 2.11(b) or Section 2.11(c) shall be required from and after the Tenth Amendment Effective unless and until Term Loans (if any) are incurred by the Parent Borrower after the Tenth Amendment Effective Date, and in any event, any such ~~Other Applicable Indebtedness was not then outstanding)~~prepayments shall be subject to the terms set forth herein as of the time of determination.

Appears in 1 contract

Sources: Credit Agreement (Ultra Clean Holdings, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock shall be issued, or Indebtedness incurred, by the Borrower or any of its Subsidiaries (excluding (i) any issuance of Capital Stock in connection with an IPO consummated within six months of the Closing Date, (ii) any Senior Subordinated Notes issued within six months of the Closing Date and (iii) any Indebtedness ~~shall be~~ incurred ~~by any Group Member (other than any Indebtedness permitted to be incurred by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Section 7.2(f) or Section 7.2(h)~~, concurrently with, and~~ ) as ~~a condition to closing~~ in effect on the date of ~~such transaction~~this Agreement), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.10(d). (b) ~~Subject to clauses (d)~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(d); PROVIDED, that, notwithstanding the foregoing, (i) the aggregate Reinvestment Deferred Amount less any amounts expended prior to the most recent Reinvestment Prepayment Date to acquire assets useful in the Borrower's business shall not exceed $10,000,000 at any one time and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of ~~this~~ the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11~~2.10(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.10(d). Each such prepayment and commitment reduction shall be made on a date (an ~~“Excess Cash Flow Application Date”~~"EXCESS CASH FLOW APPLICATION DATE") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to paragraphs (a), (b) and (c) of this Section ~~2.11~~ shall be ~~applied~~ applied, FIRST, to the prepayment of the Term Loans and, SECOND, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, PROVIDED that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. (e) If, at any time during the Revolving Credit Commitment Period, the Total Revolving Extensions of Credit exceeds the amount of the Total Revolving Credit Commitments then in effect, the Borrower shall, without notice or demand, immediately repay the Revolving Credit Loans in an aggregate principal amount equal to such excess, PROVIDED that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. (f) The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans PRO RATA based upon the then remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed. The amount of each principal prepayment of the Revolving Credit Loans shall be applied to reduce the then remaining scheduled Revolving Credit Commitment reductions PRO RATA based upon the scheduled amounts of such reductions. (g) The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ shall be made ~~on a pro rata basis regardless of Type~~first to Base Rate Loans and second to Eurodollar Loans. Each prepayment of the Loans under this Section ~~2.11~~ (except in the case of Revolving Credit Loans that are ~~ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Cumulus Media Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by the Borrower or any ~~Group Member~~ of its Restricted Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 as in effect on the date hereof, except as provided in Section 7.2(f)~~, concurrently with, and as a condition to closing of such transaction~~), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g)~~ Section 2.10(e). The provisions of this Section ~~2.11~~do not constitute a consent to the incurrence of any Indebtedness by the Borrower or any of its Subsidiaries not otherwise permitted under this Agreement. (b) ~~Subject~~ If any Capital Stock shall be issued by the Borrower or any of its Restricted Subsidiaries, an amount equal to ~~clauses~~ 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(e). (c) If on any date the Borrower or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied within two Business Days of such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(e); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.10(e). The provisions of this Section do not constitute a consent to an Asset Sale not otherwise permitted under this Agreement. (d) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 2003, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.10(e). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.10 (other than Section 2.10(f)) shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash or Cash Equivalents in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. (f) If, at any time, the sum of the Aggregate Outstanding Extensions of Credit of all Lenders exceeds the Borrowing Base then in effect, minus any Reserves, the Borrower shall, without notice or demand, immediately apply an amount equal to such excess to prepay the Loans and any interest accrued thereon, in accordance with this Section ~~2.17(b~~2.10(f). ~~The application of any prepayment of Loans~~ Amounts to be applied in connection with prepayments made pursuant to this Section ~~2.11~~ 2.10(f) shall be ~~made on a pro rata basis regardless of Type. Each~~ applied, first, to the prepayment of the Revolving Credit Loans ~~under this Section 2.11~~ together (except in the case of Revolving Credit Loans ~~that~~ which are ~~ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Base Rate Loans) ~~shall be accompanied by~~ with interest accrued ~~interest~~ to the date of such payment or prepayment on (provided that if the aggregate principal amount ~~prepaid. (h) Notwithstanding any~~ of ~~the other provision of this Section 2.11, if any prepayment of Eurocurrency~~ Revolving Credit Loans then outstanding is ~~required to be made under this Section 2.11 other~~ less than ~~on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ the amount of ~~any~~ such ~~prepayment otherwise required~~ excess (either because L/C Obligations constitute a portion thereof or due to ~~be made thereunder~~ the establishment of a Reserve in the Borrowing Base by the Collateral Agent), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash or Cash Equivalents in a cash collateral account established with the Administrative ~~Agent, to be held as security~~ Agent for the ~~obligations~~ benefit of the ~~applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into~~ Lenders on terms and conditions reasonably satisfactory to the Administrative ~~Agent until the last day of such Interest Period~~Agent) and, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Defaultsecond, ~~the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount~~ to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding).

Appears in 1 contract

Sources: Credit Agreement (Rotech Healthcare Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i)~~ reason the ~~ECF Percentage for such period~~ Total Revolving Extensions of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu Credit (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect giving effect to any ~~Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d~~Cash Collateralized Letters of Credit) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time ~~exceeds (the “Revolving Excess”)~~ exceed the Total Revolving Commitments then in effect, the ~~Revolving Borrowers~~ Borrower shall immediately ~~(or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and~~ prepay Revolving Loans ~~and~~ and/or Cash Collateralize ~~Letters of Credit to~~ the ~~extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially~~ L/C Obligations in ~~the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on~~ an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent amount not less than ~~three Business Days (or~~ the applicable Minimum Collateral Amount multiplied by such ~~shorter time as the Administrative Agent shall reasonably agree) prior~~ excess amount; provided, however, that, subject to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amountsSection 2.24(a), the ~~“Declined Proceeds”) by providing written notice (each, a “Rejection Notice”)~~ Borrower shall not be required to Cash Collateralize the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made L/C Obligations pursuant to this Section ~~2.11~~ 2.9(a) unless after the prepayment in full of the Revolving Loans, Total Revolving Extensions of Credit exceed the Total Revolving Commitments then in effect. (b) If on any date a Trigger Event or an Event of Default has occurred and is continuing, the Borrower shall ~~be applied~~ prepay Revolving Loans and Cash Collateralize the L/C Obligations as set forth in Section 2.25(b). If on any date a Partial Trigger Event has occurred and is continuing, the Borrower shall prepay Revolving Loans and Cash Collateralize the L/C Obligations as set forth in Section 2.26(b). (c) Within five (5) Business Days after any Group Member incurs any Indebtedness pursuant to Section 7.2(q) or Section 7.2(s), the Borrower shall prepay Revolving Loans (with a concurrent permanent reduction in the underlying Revolving Commitments) in an amount equal to the aggregate amount of all cash proceeds received in respect thereof by such Group Member net of all investment banking fees, discounts and commissions, legal fees, consulting fees, accountants’ fees, underwriting discounts and commissions and other fees and expenses, actually incurred in connection therewith; provided that the Borrower may elect to apply any such net cash proceeds from Indebtedness incurred pursuant to Section 7.2(q) or Section 7.2(s), as applicable, to the prepayment of loans under the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Subsidiary Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness Documents only to (and not in excess of) the extent to which a mandatory prepayment in respect of such ~~Asset Sale, Recovery Event or Excess Cash Flow~~ net cash proceeds is required under the terms of ~~such Other Applicable Indebtedness~~ the Subsidiary Loan Documents (with any remaining ~~Net Cash Proceeds or Excess Cash Flow applied~~ net cash proceeds used to prepay ~~outstanding Term~~ Revolving Loans in accordance with the terms ~~hereof~~of this Section 2.9(c)~~, unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share~~ ). (~~determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time~~d) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly Within five (~~and, in any event, within 10~~ 5) Business Days after ~~the date of such rejection~~any Group Member incurs any Indebtedness pursuant to Section 7.2(r) ~~be applied to prepay Term Loans in accordance~~ that is secured by a Lien that is pari passu with the ~~terms hereof~~ Liens securing the Obligations, the Borrower shall prepay Revolving Loans (with a concurrent permanent reduction in the underlying Revolving Commitments) in an amount equal to the ~~extent~~ aggregate amount of all cash proceeds received in respect thereof by such ~~Net Cash Proceeds or Excess Cash Flow would otherwise have been~~ Group Member net of all investment banking fees, discounts and commissions, legal fees, consulting fees, accountants’ fees, underwriting discounts and commissions and other fees and expenses, actually incurred in connection therewith. (e) Within five (5) Business Days following the end of each of the months ending June 30, 2021, July 31, 2021 and August 31, 2021, the Borrower shall prepay Revolving Loans (with a concurrent permanent reduction in the underlying Revolving Commitments) in an amount equal to $5,000,000 on each such date. (f) In the event that Parent Guarantor’s Liquidity as of the last day of any month, commencing with the month ending September 30, 2021, is greater than $100,000,000, within five (5) Business Days following the end of each such month, the Borrower shall repay the Revolving Loans (with a concurrent permanent reduction in the underlying Revolving Commitments) in an amount equal to $5,000,000 on each such date; provided that the aggregate amount of prepayments of Revolving Loans (and Revolving Commitment reductions) pursuant to this Section 2.9(f) shall not be required to ~~be applied if~~ exceed $10,000,000. (g) Within five (5) Business Days after any Group Member issues any Disqualified Capital Stock or preferred stock, the Borrower shall repay the Revolving Loans (with a concurrent permanent reduction in the underlying Revolving Commitments) in an amount equal to the aggregate amount of all cash proceeds received in respect thereof by such ~~Other Applicable Indebtedness was not then outstanding)~~Group Member net of all investment banking fees, discounts and commissions, legal fees, consulting fees, accountants’ fees, underwriting discounts and commissions and other fees and expenses, actually incurred in connection therewith.

Appears in 1 contract

Sources: Credit Agreement (CorePoint Lodging Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(d); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) ~~Subject to clauses (d) and (i) of this Section 2.11~~If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be ~~Excess~~ delivered in respect thereof, such Net Cash ~~Flow~~Proceeds shall be applied within five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to ~~(i)~~ the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and~~ Reinvestment Prepayment Amount with respect to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount relevant Reinvestment Event shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.11(d). (gc) If, for any fiscal year of ~~this Section 2.11~~the Borrower (or portion thereof in the case of the fiscal year ending December 28, ~~provided that no such prepayment~~ 2015), there shall be ~~made if~~ Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow ~~for any~~ Application Date, apply toward the prepayment of the Term Loans as set forth in Section 2.11(d) the excess of (x) the ECF Percentage of such Excess Cash Flow ~~Period is less than $10,000,000~~ over (~~and~~y) solely to the extent not funded with the proceeds of Indebtedness, ~~if Excess Cash Flow exceeds~~ the aggregate amount of all optional prepayments of Term Loans made during such ~~amount~~fiscal year pursuant to Section 2.10, ~~only~~ plus the aggregate amount of all Loan purchases made during such ~~excess~~ fiscal year pursuant to Section 2.25 and Section 10.6(e) (provided that the aggregate amount of any such purchase shall be ~~subject to prepayment~~the amount of the Borrower’s cash payment in respect of such purchase). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment ~~of Loans~~ pursuant to this Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 ~~(except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) ~~Notwithstanding~~ With respect to any prepayment pursuant to this Section 2.11 of Term B Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the ~~other provision~~ amount of ~~this Section 2.11, if any~~ such prepayment ~~of Eurocurrency Loans~~ that is required to be made under this Section ~~2.11 other~~ 2.11. Any Lender may decline to accept all (but not less than ~~on the last day~~ all) of ~~the Interest Period applicable thereto, the applicable Borrower may, in~~ its ~~sole discretion, deposit the amount~~ share of any such prepayment ~~otherwise required to be made thereunder with~~ (the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory “Declined Amount”) by providing written notice to the Administrative Agent ~~until~~ no later than two Business Days after the ~~last day~~ date of such ~~Interest Period, at which time~~ Lender’s receipt of notice from the Administrative Agent ~~shall be authorized (without any further action by or~~ regarding such prepayment. If the Lender does not give a notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent ~~shall also be authorized (without any further action by~~ on or ~~notice~~ prior to ~~or from any Borrower or any other Loan Party) to apply~~ such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by second Business Day informing the Administrative Agent ~~pursuant~~ that it declines to ~~this clause (h) pending application~~ accept the applicable prepayment, then such Lender will be deemed to ~~any Eurocurrency Loans shall be held and applied to the satisfaction of~~ have accepted such ~~Eurocurrency Loans prior to any other application of such property as~~ prepayment. Such Lender’s Declined Amount may be ~~provided for herein~~retained by the Borrower. (if) Notwithstanding ~~the foregoing~~ any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the ~~Borrower Representative’s option, outstanding Indebtedness that is secured~~ times provided in this Section 2.11 but may be retained by the ~~Collateral~~ applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a ~~pari passu basis (determined without regard~~ result thereof) to the ~~control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory~~ prepayment of the Term Loans pursuant to this Section ~~2.11(b) and/or~~ 2.11 (~~c), and the amount of any~~ provided that no such prepayment ~~required~~ of the Term Loans pursuant to ~~be made hereunder~~ this Section 2.11 shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the ~~holders~~ case of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would ~~otherwise~~ have been ~~required to be applied~~ payable or reserved against if such ~~Other Applicable Indebtedness was not then outstanding~~Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).

Appears in 1 contract

Sources: Term Loan Credit Agreement (TTM Technologies Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any ~~Indebtedness~~ Redeemable Preferred Interests or Debt shall be issued or incurred by any ~~Group Member~~ Restricted Company (~~other than~~ excluding any ~~Indebtedness permitted to be~~ Debt or Redeemable Preferred Interests incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Credit Agreement Refinancing Debt) or Capital Stock issued in compliance with Section 7)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied ~~on the date~~ within five Business Days of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(d). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any Restricted ~~Subsidiary~~ Company shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event ~~in excess of (i) the greater of $2,000,000~~ and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in are not prohibited under any ~~fiscal year,~~ Requirements of Law to be distributed or otherwise transferred without the consent or approval of a Governmental Authority then, ~~unless~~ to the ~~Borrower Representative has determined~~ extent a Reinvestment Notice shall not have been delivered in ~~good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”)~~respect thereof, an ~~aggregate~~ amount equal to ~~100% of~~ such Net Cash Proceeds shall be applied within ~~five~~ ten Business Days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of ~~such date to prepay outstanding~~ the Term Loans and the Revolving Loans as set forth in ~~accordance with this~~ Section ~~2.11~~2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the Revolving Loans as set forth in Section ~~2.11(g~~2.11(d). (dc) ~~Notwithstanding anything~~ If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2020, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d), (A) the ECF Percentage of such Excess Cash Flow, minus (B) the sum of (i) all voluntary prepayments of Term Loans (and Revolving Loans to the ~~contrary~~ extent the applicable Revolving Commitments are permanently reduced by the amount of such payments) and any other prepayments of Permitted Other Debt, Permitted Refinancings and/or other Debt secured by Liens on the Collateral on a pari passu basis or senior basis to the Liens on the Collateral made during such Fiscal Year, plus (ii) the amount of cash consideration paid by the Borrower and its Restricted Subsidiaries in ~~this Agreement~~ connection with Investments permitted by Section 7.6. Each such prepayment and commitment reduction shall be made on a date (~~including clauses~~ an “Excess Cash Flow Application Date”) no later than ten Business Days after the earlier of (bi) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) the date such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences)financial statements are actually delivered; provided, however, that ~~for~~ a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment prepayment of Term Loans pursuant to this Section ~~2.11~~2.11(c) shall only be required in the amount (if any) by which such payment amount for the applicable Fiscal Year exceeds $25,000,000. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section 2.11 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b)) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment ~~of Loans~~ pursuant to this Section 2.11 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) Notwithstanding ~~any of~~ anything to the ~~other provision of this~~ contrary in Section ~~2.11~~2.11(d) or 2.17, ~~if any prepayment of Eurocurrency Loans is required~~ with respect to ~~be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ the amount of any mandatory prepayment described in this Section 2.11 that is allocated to Tranche B Term Loans (such ~~prepayment otherwise required to be made thereunder with~~ amount, the ~~Administrative Agent~~“Designated Prepayment Amount”), ~~to be held as security for~~ at any time when Tranche A Term Loans remain outstanding, the ~~obligations of the applicable~~ Borrower ~~to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to~~ will give the Administrative Agent ~~until the last day~~ notice in writing of such ~~Interest Period~~mandatory prepayment at least three (3) Business Days prior to the date of such prepayment (each a “Mandatory Prepayment Date”). As promptly as practicable after receiving such notice from the Borrower, ~~at which time~~ the Administrative Agent will send to each Tranche B Term Lender a notice, which shall be ~~authorized~~ in the form of Exhibit G (~~without any further action~~ each, a “Prepayment Option Notice”), and shall include the relevant Term Loans of such Lender by or an amount equal to the portion of the Designated Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans as described above in respect of which such Lenders have accepted prepayment (it being understood that a failure to respond to a Prepayment Option Notice no later than 5:00 p.m. one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment shall be deemed an acceptance of the prepayment referenced therein) and (ii) the Borrower shall pay to ~~or from any Borrower or any other Loan Party)~~ the Tranche A Term Lenders an amount equal to ~~apply~~ the portion of the Designated Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if after the application of amounts pursuant to clause (ii), any portion of the Designated Prepayment Amount not accepted by the Tranche B Term Lenders shall remain, such ~~Eurocurrency~~ amount shall be used to prepay the Tranche B Term Loans on a pro rata basis. (f) Revolving Loan Prepayments. (i) In the event of the termination of all the Alternative Currency Revolving Commitments, the Borrower shall, on the date of such termination, repay or prepay all its outstanding Alternative Currency Revolving Loans and all outstanding Swingline Loans and replace all outstanding Alternative Currency Letters of Credit or cash collateralize all outstanding Alternative Currency Letters of Credit in accordance with ~~this~~ the procedures set forth in Section ~~2.11 (determined as~~ 3.10. In the event of the termination of all the Dollar Revolving Commitments, the Borrower shall, on the date of such ~~prepayment was required to be originally made); provided that such unpaid Eurocurrency~~ termination, repay or prepay all its outstanding Dollar Revolving Loans ~~shall continue to bear interest~~ and replace all outstanding Dollar Letters of Credit or cash collateralize all outstanding Dollar Letters of Credit in accordance with the procedures set forth in Section ~~2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon~~ 3.10. (ii) In the ~~occurrence and during the continuance~~ event of any ~~Event~~ partial reduction of ~~Default~~the Alternative Currency Revolving Commitments, then (x) at or prior to the effective date of such reduction, the Administrative Agent shall ~~also be authorized (without any further action by or notice to or from any~~ notify the Borrower ~~or any other Loan Party) to apply such amount to~~ and the ~~prepayment~~ Alternative Currency Revolving Lenders of the ~~applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as~~ sum of the ~~date~~ Alternative Currency Revolving Extensions of Credit after giving effect thereto and (y) if the sum of the Alternative Currency Revolving Extensions of Credit would exceed the aggregate amount of Alternative Currency Revolving Commitments after giving effect to such ~~prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement~~reduction, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at then the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may shareshall, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect date of such ~~Asset Sale~~reduction, ~~Recovery Event~~ first, repay or ~~Excess Cash Flow is required under the terms~~ prepay Swingline Loans, second, repay or prepay Alternative Currency Revolving Loans and third, replace outstanding Alternative Currency Letters of ~~such Other Applicable Indebtedness (with any remaining Net Cash Proceeds~~ Credit or ~~Excess Cash Flow applied to prepay~~ cash collateralize outstanding ~~Term Loans~~ Alternative Currency Letters of Credit in accordance with the ~~terms hereof)~~procedures set forth in Section 3.10, ~~unless~~ in an aggregate amount sufficient to eliminate such ~~application would result in~~ excess. In the ~~holders~~ event of ~~Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis~~ any partial reduction of the ~~aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness~~ Dollar Revolving Commitments, then (x) at ~~such time)~~ or prior to the effective date of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flowreduction, the ~~declined~~ Administrative Agent shall notify the Borrower and the Dollar Revolving Lenders of the sum of the Dollar Revolving Extensions of Credit after giving effect thereto and (y) if the sum of the Dollar Revolving Extensions of Credit would exceed the aggregate amount of Dollar Revolving Commitments after giving effect to such ~~Net Cash Proceeds or Excess Cash Flow shall promptly (and~~reduction, ~~in any event~~then the Borrower shall, ~~within 10 Business Days after~~ on the date of such ~~rejection) be applied to~~ reduction, first, repay or prepay ~~Term~~ Dollar Revolving Loans and second, replace outstanding Dollar Letters of Credit or cash collateralize outstanding Dollar Letters of Credit in accordance with the ~~terms hereof~~ procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess. (iii) In the event that the sum of all Alternative Currency Revolving Lenders’ Alternative Currency Revolving Extensions of Credit exceeds the Alternative Currency Revolving Commitments then in effect (including, without limitation, as a result of any Revaluation Date or as a result of currency fluctuations), the Borrower shall, without notice or demand, immediately first, repay or prepay Swingline Loans, second, repay or prepay Alternative Currency Revolving Loans, and third, replace outstanding Alternative Currency Letters of Credit or cash collateralize outstanding Alternative Currency Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess. In the event that the sum of all Dollar Revolving Lenders’ Dollar Revolving Extensions of Credit exceeds the Dollar Revolving Commitments then in effect, the Borrower shall, without notice or demand, immediately first, repay or prepay Dollar Revolving Loans, and second, replace outstanding Dollar Letters of Credit or cash collateralize outstanding Dollar Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess. (iv) In the event that the aggregate LC Obligations exceed the LC Commitment then in effect, the Borrower shall, without notice or demand, immediately replace outstanding Letters of Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 3.10, in an aggregate amount sufficient to eliminate such excess. (g) [Reserved]. (h) In the event that, on or prior to the ~~extent~~ date that is six months after the Closing Date, the Borrower (x) prepays, refinances, substitutes or replaces any Tranche B Term Loan pursuant to a Repricing Transaction (including, for avoidance of doubt, any prepayment made pursuant to Section 2.11(a) that constitutes a Repricing Transaction), or (y) effects any amendment of this Agreement resulting in a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Tranche B Term Lenders, (I) in the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of the Tranche B Term Loan so prepaid, refinanced, substituted or replaced and (II) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the applicable Tranche B Term Loan outstanding immediately prior to such ~~Net Cash Proceeds or Excess Cash Flow would otherwise have been required to~~ amendment. Such amounts shall be ~~applied if~~ due and payable on the date of effectiveness of such ~~Other Applicable Indebtedness was not then outstanding)~~Repricing Transaction.

Appears in 1 contract

Sources: Credit Agreement (Davita Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock shall be issued by Holdings on any date (other than issuances (a) to the Sponsor and its Control Investment Affiliates, (b) to management, employees, directors or consultants of Holdings or any of its Subsidiaries pursuant to any employee stock option or stock purchase plan or other employee benefit plan in existence from time to time, or (c) to other Persons to the extent the proceeds of such issuances are concurrently applied to fund Permitted Acquisitions), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied (unless a Reinvestment Notice shall be delivered in respect thereof) on the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f); provided that (i) no such application of Net Cash Proceeds shall be required if, at the time of such issuance of Capital Stock, the Borrower’s Consolidated Leverage Ratio is less than 2.50:1.00 and (ii) notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f). (b) If any Indebtedness shall be incurred by any Group Member (other than ~~any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2~~Excluded Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~4.2(f). (bc) ~~Subject to clauses~~ If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale (dincluding sales or issuances of Capital Stock of the Borrower or any of its Subsidiaries) ~~and (i)~~ or Recovery Event in excess of ~~this Section 2.11~~$500,000 then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be ~~Excess~~ delivered in respect thereof, such Net Cash ~~Flow~~Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(f). (id) ~~the ECF Percentage~~ If, for ~~such period of such Excess Cash Flow over (ii) in each case at the option~~ any fiscal year of the Borrower ~~Representative and to~~ commencing with the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4fiscal year ending December 31, 2006, there shall be positive Excess Cash Flow, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower ~~Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date,~~ shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment4.2(f). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section ~~6.1(a~~7.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the ~~Lenders~~Lenders and (ii) the date such financial statements are actually delivered. (ce) ~~Subject to clauses (d) and (i) of this Section 2.11, if,~~ If on any ~~date, UK Holdco or any Restricted Subsidiary~~ date a Group Member shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal yearAllotted Disposition, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, an ~~aggregate~~ amount equal to 100% of such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~4.2(f); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.11(g~~4.2(f). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 4.2 (except in the case of Revolving Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Protection One Alarm Monitoring Inc)

Mandatory Prepayments and Commitment Reductions. (a) If The following amounts, to the extent received by Parent, the Borrower or any ~~Indebtedness~~ Subsidiary, shall be ~~incurred by any Group Member~~ (~~other than any Indebtedness permitted~~ x) if prior to ~~be incurred by any such Person in accordance with Section 7.2)~~the Funding Date, ~~concurrently with, and as a condition~~ automatically applied to ~~closing~~ reduce the Commitments on the date of such ~~transaction~~receipt and (y) if on or after the Funding Date, ~~an amount equal~~ applied within three Business Days of the date of such receipt to prepay any outstanding Loans, without duplication: (i) 100% of the Net Cash Proceeds ~~thereof~~ of all Capital Raising Transactions, (ii) 100% of the Net Cash Proceeds of all Material Asset Sales, provided that no prepayment of the Loans or reduction of the Commitments will be required pursuant to this clause (ii) unless and until the Net Cash Proceeds from all Material Asset Sales in the aggregate exceed $300,000,000, and then only such excess amount shall be required to be applied towards prepayment of the Loans or reduction of the Commitments, (iii) 100% of the committed amount of the term loans under any Qualifying Loan Facility (such reduction of the Commitments to occur automatically upon the effectiveness of definitive documentation for such credit facility and receipt by the Administrative Agent of a notice from the Borrower that such credit facility constitutes a Qualifying Loan Facility), and (iv) 100% of the Net Cash Proceeds from any credit facility of Parent, the Borrower or any Subsidiary for the purpose of financing any portion of the Transactions, in each case on or after the date of ~~such issuance or incurrence toward~~ the ~~prepayment~~ Commitment Letter (including the Combined Facility, but only to the extent that the aggregate amount of ~~the Term Loans as set forth in clause~~ commitments and loans thereunder (gwithout duplication) ~~of this Section 2.11~~exceed $3,000,000,000). (b) ~~Subject to clauses (d) and (i) of this~~ In the event that the Borrower makes an Extension Request in accordance with Section ~~2.11~~2.15, ~~if, for any Excess Cash Flow Period, there~~ the Borrower shall ~~be Excess Cash Flow,~~ prepay the Loans on the Initial Maturity Date in an amount equal to ~~(i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option~~ 35.0% of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate principal amount ~~of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value~~ of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value outstanding as of the ~~loans or notes repurchased) by UK Holdco and~~ Initial Maturity Date (the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments“Amortization Payment”), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) ~~Subject to clauses (d) and (i)~~ Each prepayment of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a ~~“Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds~~ Borrowing shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal ratably to the ~~Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term~~ Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) included in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be madeprepaid Borrowing. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) Prepayments shall be accompanied by accrued interest to the ~~date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this~~ extent required by Section ~~2.11, if any prepayment of Eurocurrency Loans is required to~~ 2.08 and be made ~~under this Section 2.11~~ without penalty or premium (other than ~~on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of~~ any ~~such prepayment otherwise~~ break funding payments required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by ~~or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this~~ Section ~~2.11 (determined as of the date such prepayment was required to be originally made~~3.05); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)..

Appears in 1 contract

Sources: Term Loan Agreement (Healthcare Trust of America Holdings, LP)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree and without prejudice to Section 7.2, if any Indebtedness ~~shall be~~ is incurred after the date hereof by Holdings, the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.12(d). (b) ~~Subject~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof within five Business Days thereafter, 100% of such Net Cash Proceeds shall be applied on such fifth Business Day toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales (other than Asset Sales in connection with the Ripon Transition) that may be excluded from the foregoing requirement pursuant to ~~clauses~~ a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower, (dii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(d) and (iiii) for purposes of this Section ~~2.11~~2.12(b), the Net Cash Proceeds of any Asset Sale pursuant to Section 7.5(k) shall be equal to the lesser of (A) the amount of such Net Cash Proceeds and (B) the aggregate amount of Investments made by Holdings, the Borrower or any of their respective Subsidiaries in the relevant Foreign Subsidiary after the Effective Date and, in no event, shall the Net Cash Proceeds of all Asset Sales in respect of the Capital Stock of any Foreign Subsidiary for purposes of this Section 2.12(b) exceed the aggregate amount of Investments made by Holdings, the Borrower and their respective Subsidiaries in such Foreign Subsidiary after the Effective Date. (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year in which the Effective Date occurs, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.12(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) ~~Notwithstanding anything~~ Subject to ~~the contrary in this Agreement (including clauses (b) and (c) above)~~Section 2.18, to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ shall be made on first to Base Rate Loans and second to Eurodollar Loans (in a ~~pro rata basis regardless~~ manner, to the extent practicable and permitted hereunder, which minimizes amounts payable under Section 2.21 as a result of ~~Type~~such prepayment). Each prepayment of the Loans under this Section ~~2.11~~ (except in the case of Revolving Credit Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) ~~Notwithstanding any of the other provision of this Section 2.11, if any~~ Any prepayment of ~~Eurocurrency~~ Loans ~~is required to be made under this Section 2.11 other than on the last day~~ and/or reduction of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent Commitments pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c)Section, and the ~~amount~~ rights of ~~any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of)~~ the ~~extent to which a mandatory prepayment~~ Lenders in respect ~~of such Asset Sale~~thereof, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (are subject to the ~~extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)~~provisions of Section 2.18.

Appears in 1 contract

Sources: Credit Agreement (Alliance Laundry Corp)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2 (other than Indebtedness incurred under paragraph (g) of Section 7.2~~), concurrently with,~~ ) and ~~as a condition~~ the Net Cash Proceeds received by the Borrower from the exercise of stock options) (i) an amount equal to ~~closing~~ 50% of the Net Cash Proceeds in respect of the issuance of such ~~transaction,~~ Capital Stock and (ii) an amount equal to 100% of the Net Cash Proceeds ~~thereof~~ in respect of the incurrence of such Indebtedness, in each case, shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.9(d). (b) ~~Subject to clauses (d)~~ If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of ~~this Section 2.11, if, for~~ Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any ~~Excess Cash Flow Period, there shall be Excess Cash Flow~~fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to ~~(i)~~ the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and~~ Reinvestment Prepayment Amount with respect to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount relevant Reinvestment Event shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.9(d). (gc) If, for any fiscal year of ~~this Section 2.11~~the Borrower commencing with the fiscal year ending December 31, ~~provided that no such prepayment~~ 2005, there shall be ~~made if~~ Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow ~~for any~~ Application Date, apply the ECF Percentage of such Excess Cash Flow ~~Period is less than $10,000,000 (and~~toward the prepayment of the Term Loans as set forth in Section 2.9(d); provided, if however, that the amount of any such Excess Cash Flow ~~exceeds such amount, only such excess~~ payment shall be ~~subject to prepayment)~~reduced by the amount of any optional prepayments of principal made on the Term Loans during the fiscal year of the Borrower for which Excess Cash Flow is measured. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ~~10 Business Days~~ five days after the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (~~c) Subject to clauses (~~d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~2.15(b). The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Coinstar Inc)

Mandatory Prepayments and Commitment Reductions. (a) If for any reason the Total Revolving Extensions of Credit exceeds the lesser of (x) the Total Revolving Commitments then in effect and (y) the Maximum Permitted Outstanding Amount, the Borrowers shall immediately prepay the applicable Loans in an aggregate amount equal to such excess. (b) [Reserved]. (c) On March 31, 2021, the Total Revolving Commitments shall be reduced automatically to $400,000,000 and, concurrently with such reduction, the Borrowers shall make any prepayment of Loans (and, if applicable, cash collateralize outstanding Letters of Credit), in each case, to the extent required pursuant to Section 2.6(e) as a result of such reduction. (d) If any Indebtedness shall be incurred ~~by any Group Member (other than any Indebtedness permitted~~ pursuant to ~~be incurred by any such Person in accordance with~~ Section ~~7.2~~7.2(h)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be immediately applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11Loans. (e) In Any reduction of the ~~event~~ Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate ~~Outstanding Amount~~ principal amount of Revolving ~~Loans,~~ Loans then outstanding is less than the amount of such excess (because L/C Obligations ~~and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect~~constitute a portion thereof), the ~~Revolving~~ Borrowers ~~shall immediately (or~~shall, ~~if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit~~ to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the ~~Borrower Representative (~~balance of such excess, cash collateralize on ~~behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (~~or ~~such shorter time as the Administrative Agent shall reasonably agree)~~ prior to the date ~~such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender~~ of such ~~notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause~~ reduction (bin the manner described in Section 3.9) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date replace outstanding Letters of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b)Credit. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Revolving Loans under ~~this~~ Section ~~2.11~~ 2.6 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Colony Capital, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(d); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) ~~Subject to clauses (d) and (i) of this Section 2.11~~If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be ~~Excess~~ delivered in respect thereof, such Net Cash ~~Flow~~Proceeds shall be applied within five Business Days after such date toward the prepayment of the Term Loans as set forth in Section 2.11(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to ~~(i)~~ the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and~~ Reinvestment Prepayment Amount with respect to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount relevant Reinvestment Event shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.11(d). (gc) If, for any fiscal year of ~~this Section 2.11~~the Borrower (or portion thereof in the case of the fiscal year ending December 28, ~~provided that no such prepayment~~ 2015), there shall be ~~made if~~ Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow ~~for any~~ Application Date, apply toward the prepayment of the Term Loans as set forth in Section 2.11(d) the excess of (x) the ECF Percentage of such Excess Cash Flow ~~Period is less than $10,000,000~~ over (~~and~~y) solely to the extent not funded with the proceeds of Indebtedness, ~~if Excess Cash Flow exceeds~~ the aggregate amount of all optional prepayments of Term Loans made during such ~~amount~~fiscal year pursuant to Section 2.10 (including all optional prepayments of Term Loans (as defined in the Existing Credit Agreement) made during such fiscal year pursuant to Section 2.10 of the Existing Credit Agreement), ~~only~~ plus the aggregate amount of all Loan purchases made during such ~~excess~~ fiscal year pursuant to Section 2.25 and Section 10.6(e) (including all purchases of Loans (as defined in the Existing Credit Agreement) made during such fiscal year pursuant to Sections 2.25 and 10.6(e) of the Existing Credit Agreement) (provided that the aggregate amount of any such purchase shall be ~~subject to prepayment~~the amount of the Borrower’s cash payment in respect of such purchase). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment ~~of Loans~~ pursuant to this Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.11 ~~(except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) ~~Notwithstanding~~ With respect to any prepayment pursuant to this Section 2.11 of Term B Loans and, unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment under this Section 2.11 at least three Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the ~~other provision~~ amount of ~~this Section 2.11, if any~~ such prepayment ~~of Eurocurrency Loans~~ that is required to be made under this Section ~~2.11 other~~ 2.11. Any Lender may decline to accept all (but not less than ~~on the last day~~ all) of ~~the Interest Period applicable thereto, the applicable Borrower may, in~~ its ~~sole discretion, deposit the amount~~ share of any such prepayment ~~otherwise required to be made thereunder with~~ (the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory “Declined Amount”) by providing written notice to the Administrative Agent ~~until~~ no later than two Business Days after the ~~last day~~ date of such ~~Interest Period, at which time~~ Lender’s receipt of notice from the Administrative Agent ~~shall be authorized (without any further action by or~~ regarding such prepayment. If the Lender does not give a notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent ~~shall also be authorized (without any further action by~~ on or ~~notice~~ prior to ~~or from any Borrower or any other Loan Party) to apply~~ such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by second Business Day informing the Administrative Agent ~~pursuant~~ that it declines to ~~this clause (h) pending application~~ accept the applicable prepayment, then such Lender will be deemed to ~~any Eurocurrency Loans shall be held and applied to the satisfaction of~~ have accepted such ~~Eurocurrency Loans prior to any other application of such property as~~ prepayment. Such Lender’s Declined Amount may be ~~provided for herein~~retained by the Borrower. (if) Notwithstanding ~~the foregoing~~ any other provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the ~~Borrower Representative’s option, outstanding Indebtedness that is secured~~ times provided in this Section 2.11 but may be retained by the ~~Collateral~~ applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a ~~pari passu basis (determined without regard~~ result thereof) to the ~~control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory~~ prepayment of the Term Loans pursuant to this Section ~~2.11(b) and/or~~ 2.11 (~~c), and the amount of any~~ provided that no such prepayment ~~required~~ of the Term Loans pursuant to ~~be made hereunder~~ this Section 2.11 shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the ~~holders~~ case of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would ~~otherwise~~ have been ~~required to be applied~~ payable or reserved against if such ~~Other Applicable Indebtedness was not then outstanding~~Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).

Appears in 1 contract

Sources: Term Loan Credit Agreement (TTM Technologies Inc)

Mandatory Prepayments and Commitment Reductions. (a) If at any ~~Indebtedness~~ time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrowers shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment of a Borrowing shall be ~~incurred by~~ applied ratably to the Revolving Base Rate Loans to the full extent thereof, and finally to Revolving Eurodollar Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrowers shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to such excess plus any ~~Group Member (other than any Indebtedness permitted~~ accrued and unpaid fees thereon to be ~~incurred by~~ held as collateral for the Aggregate LC Exposure and any ~~such Person~~ other remaining Obligations. Such account shall be administered in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g2.23(g) ~~of this Section 2.11~~hereof. (b) Subject to ~~clauses~~ Section 2.12(d), in the event and on each occasion that any Net Proceeds are received by or on behalf of any Borrower or its respective Subsidiaries in respect of any Debt Issuance or Equity Issuance, such Borrower shall, within five (d5) ~~and (i) of this Section 2.11~~Business Days after such Net Proceeds are received, ~~if, for~~ prepay any ~~Excess Cash Flow Period, there shall be Excess Cash Flow,~~ Loans then owing by it in an aggregate amount equal to (i) in the ~~ECF Percentage for such period~~ case of any Debt Issuance, one hundred percent (100%) of such ~~Excess Cash Flow over~~ Net Proceeds, and (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of ~~Revolving Loans~~any Equity Issuance, ~~only to the extent~~ fifty percent (50%) of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (such Net Proceeds; provided, however, that if ~~any payment committed to be made is not actually made in cash~~ the Parent Borrower shall deliver, within such ~~period~~five (5) Business Days, ~~such amount shall be added back~~ to ~~Excess Cash Flow for~~ the ~~subsequent Excess Cash Flow Period) or, at the option~~ Administrative Agent a certificate of the Parent Borrower ~~Representative, after the Excess Cash Flow Period and prior~~ to the ~~Excess Cash Flow Application Date~~effect that the Parent Borrower and its Subsidiaries intend to apply the Net Proceeds from such Equity Issuance (or a portion thereof as specified in such certificate) within 180 days after receipt of such Net Proceeds, ~~shall~~as an investment in the Subsidiary Borrower, ~~on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided~~ and certifying that no Default or Event of Default has occurred and is then continuing, then in each such case no prepayment shall be ~~made if~~ required pursuant to this Section 2.12(b) in respect of such Net Proceeds from such Equity Issuance (or the ~~Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and~~portion of such Net Proceeds specified in such certificate, if ~~Excess Cash Flow exceeds~~ applicable); provided, further, that if by the end of any such ~~amount~~180-day period, ~~only~~ any such ~~excess~~ Net Proceeds therefrom shall ~~be subject to prepayment). Each such~~ not have been so applied, prepayment shall be ~~made on a date~~ required at such time in an amount equal to such Net Proceeds not so applied. Prepayment shall be applied ratably to such Borrower’s Revolving Base Rate Loans to the full extent thereof, and then to such Borrower’s Revolving Eurodollar Loans to the full extent thereof. If after giving effect to such prepayment of all such Loans, the Revolving Credit Exposure of all Lenders in respect of the Bay Gas LC Commitment (~~an “Excess Cash Flow Application Date”~~in the case of the Subsidiary Borrower) ~~no later than 10 Business Days after~~ exceeds the ~~date on which~~ Bay Gas LC Commitment, or the ~~financial statements~~ Revolving Credit Exposure of ~~UK Holdco referred to~~ all Lenders exceeds the Aggregate Revolving Commitment Amount (in ~~Section 6.1(a~~the case of the Parent Borrower), such Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the ~~fiscal year with respect~~ benefit of the Lenders, an amount in cash equal to ~~which~~ such ~~prepayment is made, are required~~ excess plus any accrued and unpaid fees thereon to be ~~delivered to~~ held as collateral for the ~~Lenders~~Aggregate LC Exposure in respect of the Bay Gas LC (in the case of the Subsidiary Borrower), or for the remaining Aggregate LC Exposure and any other remaining Obligations (in the case of the Parent Borrower). Such account shall be administered in accordance with Section 2.23(g) hereof. (c) Subject to ~~clauses (d)~~ Section 2.12(d), in the event and ~~(i)~~ on each occasion that any Net Proceeds are received by or on behalf of ~~this Section 2.11, if, on~~ any ~~date, UK Holdco~~ Borrower or ~~any Restricted Subsidiary shall receive Net Cash Proceeds from~~ its respective Subsidiaries in respect of any Asset ~~Sale or any Recovery Event in excess of~~ Sale, such Borrower shall, within five (i5) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all Business Days after such Net ~~Cash~~ Proceeds are received, prepay any Loans then owing by it in ~~any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”),~~ an aggregate amount equal to ~~100%~~ such Net Proceeds; provided, however, that if the Parent Borrower shall deliver, within such five (5) Business Days, to the Administrative Agent a certificate of the Parent Borrower to the effect that the Parent Borrower and its Subsidiaries intend to apply the Net Proceeds from such Asset Sale (or a portion thereof as specified in such certificate) within 180 days after receipt of such Net ~~Cash Proceeds~~ Proceeds, to purchase replacement assets for use in the operations of the Parent Borrower and its Subsidiaries, and certifying that no Default or Event of Default has occurred and is then continuing, then in each such case no prepayment shall be ~~applied within five Business Days~~ required pursuant to this Section 2.12(c) in respect of such ~~date to prepay outstanding Term Loans~~ Net Proceeds from such Asset Sale (or the portion of such Net Proceeds specified in ~~accordance with this Section 2.11~~such certificate, if applicable); ~~provided that~~provided, ~~notwithstanding~~ further, that if by the ~~foregoing~~end of any such 180-day period, ~~on each Reinvestment Prepayment Date~~any such Net Proceeds therefrom have not been so applied, prepayment shall be required at such time in an amount equal to ~~the Reinvestment~~ such Net Proceeds not so applied. Prepayment ~~Amount with respect to any Asset Sale or Recovery Event,~~ shall be applied ratably to ~~prepay~~ such Borrower’s Revolving Base Rate Loans to the ~~outstanding Term~~ full extent thereof, and then to such Borrower’s Revolving Eurodollar Loans to the full extent thereof. If after giving effect to such prepayment of all such Loans, the Revolving Credit Exposure of all Lenders in respect of the Bay Gas LC Commitment (in the case of the Subsidiary Borrower) exceeds the Bay Gas LC Commitment, or the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount (in the case of the Parent Borrower), such Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to such excess plus any accrued and unpaid fees thereon to be held as ~~set forth~~ collateral for the Aggregate LC Exposure in respect of the Bay Gas LC (in the case of the Subsidiary Borrower), or for the remaining Aggregate LC Exposure and any other remaining Obligations (in the case of the Parent Borrower). Such account shall be administered in accordance with Section ~~2.11(g)~~2.23(g) hereof. (d) Notwithstanding ~~anything to~~ the ~~contrary in this Agreement (including clauses (b~~foregoing Sections 2.12(b) and (c~~) above~~), in connection with any Debt Issuance, Equity Issuance or Asset Sale by Mobile Gas, no such mandatory prepayment shall be required to be made except to the extent that at the ~~Borrower Representative~~ time of such Debt Issuance, Equity Issuance or Asset Sale, Mobile Gas has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated outstanding Indebtedness owing to the ~~relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties~~ Parent Borrower or another Subsidiary, or Mobile Gas would not otherwise be restricted from paying such amounts to the Parent Borrower or another Subsidiary by law or the rules, regulations, tariffs or orders of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11Alabama Public Service Commission. (e) In Immediately upon the ~~event~~ occurrence of any Debt Issuance, Equity Issuance or Asset Sale requiring a prepayment hereunder, the Aggregate Revolving Commitments shall automatically be reduced by a total amount equal to the maximum aggregate ~~Outstanding Amount~~ principal prepayments required to be made pursuant to this Section 2.12 in respect of such Debt Issuance, Equity Issuance or Asset Sale, or that would be required to be made in respect of such Debt Issuance, Equity Issuance or Asset Sale pursuant to this Section 2.12 if there were Loans outstanding at such time in excess of such maximum required amount, except that no such automatic reduction in the Aggregate Revolving ~~Loans, L/C Obligations and Swingline Loans at~~ Commitments shall be made with respect to mandatory prepayments made pursuant to Section 2.12(d) as a result of any ~~time exceeds (~~Debt Issuance by Mobile Gas. The total amount of such reductions shall be allocated on a pro rata basis among the ~~“Revolving Excess”)~~ respective amounts of the ~~Total~~ Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Parent Borrower ~~Representative~~ shall ~~deliver~~ give written notice (or telephonic notice promptly confirmed in writing) of any prepayment required by this Section 2.12 to the Administrative Agent ~~notice, substantially~~ no later than (i) in the ~~form~~ case of ~~Exhibit E or such other form as may be approved by the Administrative Agent (including~~ prepayment of any ~~form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent)~~Eurodollar Borrowing, appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent 12:00 noon not less than three (3) Business Days prior to the date of any prepayment, and (ii) in the case of prepayment of any Base Rate Borrowing, 12:00 noon not less than one (1) Business Day prior to the date of such prepayment. Each such notice shall be irrevocable and shall specify the proposed date of such prepayment and the principal amount of each Borrowing or portion thereof to be prepaid. Upon receipt of any such ~~shorter time as~~ notice, the Administrative Agent shall ~~reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will~~ promptly notify each ~~applicable~~ Lender of ~~such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts,~~ the ~~“Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent~~ contents thereof and ~~the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date~~ of such Lender’s ~~receipt~~ share, if any, of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of any such prepayment. ~~Any Declined Proceeds may be retained by the Borrowers (~~If such ~~retained amount~~notice is given, the ~~“Retained Declined Proceeds”). The Borrower Representative~~ aggregate amount specified in such notice shall ~~deliver~~ be due and payable on the date designated in such notice, together with accrued interest to ~~the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of~~ such date on the amount ~~of such prepayment~~so prepaid as provided in Section 2.12(g) below. (g) ~~Amounts~~ The Borrowers agree to ~~be applied in connection with any mandatory prepayments made~~ pay all accrued and unpaid interest on all amounts prepaid pursuant to ~~this Section 2.11 shall be applied to~~ the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision requirements of this Section ~~2.11~~2.12, if together with any ~~prepayment~~ amounts due in respect of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein2.19. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Energysouth Inc)

Mandatory Prepayments and Commitment Reductions. (a) If for any reason the Total Revolving Extensions of Credit exceeds the lesser of (x) the Total Revolving Commitments then in effect and (y) the Maximum Permitted Outstanding Amount, the Borrower shall immediately, prepay the applicable Loans in an aggregate amount equal to such excess. (b) [Reserved] (c) [Reserved] (d) If any Indebtedness shall be incurred ~~by any Group Member (other than any Indebtedness permitted~~ pursuant to ~~be incurred by any such Person in accordance with~~ Section ~~7.2~~7.2(h)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be immediately applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11Loans. (e) In Any reduction of the ~~event~~ Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate ~~Outstanding Amount~~ principal amount of Revolving ~~Loans,~~ Loans then outstanding is less than the amount of such excess (because L/C Obligations ~~and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect~~constitute a portion thereof), the ~~Revolving Borrowers shall immediately (or~~Borrower shall, ~~if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit~~ to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the ~~Borrower Representative (~~balance of such excess, cash collateralize on ~~behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (~~or ~~such shorter time as the Administrative Agent shall reasonably agree)~~ prior to the date ~~such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender~~ of such ~~notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause~~ reduction (bin the manner described in Section 3.9) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date replace outstanding Letters of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b)Credit. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Revolving Loans under ~~this~~ Section ~~2.11~~ 2.6 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) ~~Notwithstanding~~ At any time during the Suspension Period and upon the occurrence of any of the following events, the Borrower shall prepay the Revolving Loans at par plus accrued and unpaid interest, in each case, on a dollar-for-dollar basis within one Business Day of receipt of such Net Cash Proceeds, in an amount equal to: (i) 100% of the Net Cash Proceeds of (a) any Disposition of assets (other ~~provision~~ than from (I) casualty or condemnation events, (II) any intercompany transfers, provided proceeds from transfers of ~~this Section 2.11~~assets from Loan Parties to non-Loan Parties will not be so excluded, ~~if any prepayment~~ (III) other Dispositions of ~~Eurocurrency Loans is required~~ assets not to exceed $50,000,000 in the aggregate for all such Dispositions, (IV) dispositions of worn out, surplus or obsolete equipment in the ordinary course of business and (V) Dispositions of assets the proceeds of which are to be ~~made under this Section 2.11 other than on~~ applied to finance the ~~last day~~ acquisition of assets in respect of which the obligation to make such acquisition was incurred prior to the commencement of the ~~Interest~~ Suspension Period ~~applicable thereto~~(and was not incurred in contemplation thereof)) by the Borrower or any of its Subsidiaries (or, in the case of any non-Wholly-Owned Subsidiary, the applicable parent’s allocable share of such proceeds) and (b) any Designated Asset Sales. (ii) 100% of the Net Cash Proceeds of incurrences of Indebtedness of the Borrower ~~may~~or its Subsidiaries other than (i) any intercompany Indebtedness of the Borrower or any of its Subsidiaries, (ii) any re-financing of existing Indebtedness not increasing the existing amount (or commitments, if applicable) thereof in ~~its sole discretion~~excess of the principal amount of the Indebtedness being refinanced, ~~deposit~~ plus accrued interest, fees, premiums and refinancing expenses, (iii) Subscription Line Indebtedness, (iv) Indebtedness incurred pursuant to debt facility commitments in existence prior to the commencement of the Suspension Period (and not incurred in contemplation thereof) and any replacement or refinancing thereof not increasing the amount (or amount of ~~any such prepayment otherwise required~~ commitments, as applicable) thereof and (v) Indebtedness to ~~be made thereunder with~~ finance the ~~Administrative Agent, to be held as security for~~ acquisition of assets in respect of which the ~~obligations of the applicable Borrower~~ obligation to make such ~~prepayment~~ acquisition was incurred prior to the commencement of the Suspension Period (and was not incurred in contemplation thereof). (iii) 100% of the Net Cash Proceeds from the issuance of any Capital Stock by the REIT Entity (other than (A) issuances and settlements pursuant to ~~a cash collateral agreement~~ employee stock plans or other benefit or employee incentive arrangements, (B) issuances of shares of capital stock or rights to ~~be entered into on terms reasonably satisfactory to~~ Wholly-Owned Subsidiaries, (C) issuances of shares of Capital Stock in connection with the ~~Administrative Agent until the last day~~ conversion of convertible shares or units of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined party outstanding as of the date ~~such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest~~ hereof or otherwise issued in ~~accordance~~ compliance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party5.01(c) ~~to apply such amount to the prepayment~~ of the ~~applicable Eurocurrency Loans in accordance with this Section 2.11~~ Merger Agreement and (~~determined as~~ D) issuances to finance the acquisition of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment assets in respect of which the obligation to make such ~~Asset Sale, Recovery Event or Excess Cash Flow is required under~~ acquisition was incurred prior to the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis commencement of the ~~aggregate Outstanding Amount of Term Loans~~ Suspension Period (and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not ~~then outstanding~~incurred in contemplation thereof)).

Appears in 1 contract

Sources: Credit Agreement (Colony NorthStar, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any ~~Indebtedness shall be incurred by any Group Member~~ Capital Stock (other than Capital Stock issued to (i) any Permitted Investor or other shareholder of Holdings which was a shareholder on the Closing Date, (ii) employees of Holdings or any of its Subsidiaries within seven months following the Closing Date for an aggregate amount of Net Cash Proceeds not to exceed $650,000 or (iii) any employee or director of Holdings or any Subsidiary pursuant to any stock option plan approved by the Board of Directors of Holdings in the ordinary course of business and consistent with past practices for an aggregate amount of Net Cash Proceeds not to exceed $500,000 during any consecutive 12-month period) shall be issued, or Indebtedness (excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2)) incurred, ~~concurrently with~~by Holdings or any of its Subsidiaries, ~~and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied~~ on the date of such issuance or ~~incurrence toward the prepayment of~~ incurrence, the Term Loans shall be prepaid by an amount equal to the amount of such Net Cash Proceeds, as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.14(e). (b) ~~Subject~~ If on any date Holdings or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale, Purchase Price Refund or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, on such date the Term Loans shall be prepaid by an amount equal to ~~clauses~~ the amount of such Net Cash Proceeds, as set forth in Section 2.14(e); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date the Term Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.14(e). (dc) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period~~fiscal year of Holdings commencing with the fiscal year ending March 31, 2001, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied toward the prepayment of~~ the Term Loans shall be prepaid by an amount equal to the ECF Percentage of such Excess Cash Flow, as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.14(e). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ Holdings referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the ~~Lenders~~Lenders and (ii) the date such financial statements are actually delivered. (~~c) Subject to clauses (~~d) ~~and (i)~~ If, other than as a result of ~~this~~ the circumstances described in Section ~~2.11~~2.27, ~~if, on~~ the Total Revolving Extensions of Credit shall at any ~~date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess~~ time exceed the lesser of (i) the ~~greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period~~ Total Revolving Credit Commitments then in ~~any single transaction or series of related transactions~~ effect and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i)~~Borrowing Base then in effect, the ~~greater~~ Borrower shall immediately repay outstanding Revolving Extensions of ~~$5,000,000 and 1.6% of Consolidated EBITDA as of~~ Credit by at least the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to ~~100% of~~ such ~~Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that~~excess, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section ~~2.11(g~~2.14(e)~~. (d) Notwithstanding anything~~ , with any such repayment being applied, first, to repay any then outstanding Swing Line Loans, second, to repay any then outstanding Revolving Credit Loans and, third, to cash collateralize the L/C Obligations in a manner reasonably satisfactory to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11Administrative Agent. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans under any Facility pursuant to this Section ~~2.11~~ shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans under such Facility and, second, to Eurocurrency Loans under such Facility. Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything ~~to the contrary~~ contained in this Agreement, ~~any amounts held by~~ in no event shall the ~~Administrative Agent~~ aggregate of (x) the mandatory prepayments with respect to the Loans made to the Canadian Borrower made on or before the fifth anniversary of the Closing Date (the "Fifth Anniversary") pursuant to this ~~clause~~ Section 2.14 and (hy) ~~pending application~~ the scheduled repayments with respect to ~~any Eurocurrency~~ such Loans ~~shall be held and applied to~~ made on or before the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans Fifth Anniversary pursuant to Section ~~2.11(b~~2.3(b) ~~and/or (c), and~~ exceed 25% of the principal amount of ~~any~~ such ~~prepayment~~ Loans made on the Closing Date (the "Threshold Amount"). Any amount otherwise required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment paid in respect of such ~~Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied~~ Loans pursuant to ~~prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving~~ Sections 2.3(b) and 2.14 in excess of ~~their pro rata share~~ the Threshold Amount (~~determined on~~ the ~~basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time~~"Excess Amount") ~~of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only~~ shall not be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be ~~applied if~~ paid under such ~~Other Applicable Indebtedness was not then outstanding)~~Sections at the times prescribed therein. The Excess Amount will instead be paid on the First Business Day after the Fifth Anniversary or upon an Event of Default pursuant to Section 8.

Appears in 1 contract

Sources: Credit Agreement (Avery Berkel Holdings LTD)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by the Borrower or any ~~Group Member~~ Subsidiary (~~other~~ excluding any Excluded Indebtedness), (i) in the case of the incurrence of any such Indebtedness in the form of Additional Tower Notes, the proceeds thereof shall, as soon as such proceeds become available to the Issuer Entity, but in any event no later than the next Payment Date (as that term is defined in the Tower Notes Indenture) in respect of the Collection Period (as that term is defined in the Tower Notes Indenture) in which such Additional Tower Notes are issued, be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(e) in an amount equal to the lesser of (y) 100% of the aggregate face amount of such Additional Tower Notes, net of any ~~Indebtedness permitted~~ expenses reasonably incurred by the Issuers in connection with such issuance, or (z) if such proceeds are deposited into the Collection Account, the amount available to be ~~incurred by any~~ distributed to or at the direction of the Issuer Entity pursuant to clause Twentieth of Section 5.01(a) of the Tower Notes Indenture on such ~~Person~~ next Payment Date and (ii) in ~~accordance with Section 7.2), concurrently with, and as a condition to closing~~ the case of the incurrence of all other such ~~transaction~~Indebtedness, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.9(e). (b) ~~Subject~~ If any Capital Stock shall be issued by Holdings or any of its Subsidiaries (excluding (i) Capital Stock issued to ~~clauses~~ the Borrower or any other Subsidiary of Holdings, (ii) Capital Stock issued by Holdings and contributed to the Borrower solely for the purpose of making an Investment permitted by Section 7.7(i), (iii) Capital Stock issued by Holdings in connection with the Global Signal Acquisition and (iv) Capital Stock issued by Holdings to any of its officers, directors, employees or consultants pursuant to any employee benefit plan, stock purchase plan or employment agreement approved by the board of directors of Holdings), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loan and the reduction of the Revolving Commitments as set forth in Section 2.9(e). (c) If on any date the Borrower or any Subsidiary shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless such proceeds are required to be applied to (x) the redemption of the Tower Notes pursuant to the Tower Notes Indenture or (y) upon and after consummation of the Global Signal Acquisition, the prepayment of the Global Signal 2004 Loans or the Global Signal 2006 Loans pursuant to the Global Signal 2004 Loan Agreement or the Global Signal 2006 Loan Agreement, as applicable, or a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(e); provided that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $20,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(e). (d) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 2007, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply 50% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11,~~ 2.9(e); provided that ~~no such prepayment shall be made~~ if a Cash Trap Condition, or upon and after consummation of the Global Signal Acquisition, a Cash Trap Event has occurred and is continuing, then only that portion of Excess Cash Flow ~~for any Excess Cash Flow Period~~ that is ~~less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess~~ distributed to the Borrower by the Subsidiaries shall be ~~subject~~ required to ~~prepayment~~be applied pursuant to this Section 2.9(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section ~~6.1(a~~6.1(b), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ 2.9 shall be ~~applied~~ applied, first, to ~~the prepayment of~~ prepay the Term Loans ~~in accordance with Section 2.17(b). The application of~~ and, second, to reduce permanently the Revolving Commitments; provided that any ~~prepayment of Loans~~ prepayments and commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.9(c) shall be made on a pro rata basis ~~regardless~~ to the prepayment of ~~Type~~Terms Loans and to reduce permanently the Revolving Commitments. Any reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced; provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section ~~2.11~~ 2.9 (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Crown Castle International Corp)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be issued or incurred by any Group Member (~~other than~~ excluding (x) any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 and (y) any Permitted Warrant (to the extent such Permitted Warrant constitutes Indebtedness)), ~~concurrently with,~~ other than (i) the amount by which the aggregate purchase price for receivables paid by investors or the loans from such investors in connection with any Receivables Financing and ~~as a condition to closing~~ outstanding at any time exceeds $575,000,000 and (ii) the Borrower’s direct or indirect ratable share (determined in accordance with the Borrower’s direct or indirect ownership of ~~such transaction~~the relevant Specified Joint Venture) of Indebtedness incurred under an agreement described in Section 7.14(c)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(d). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Loan Party shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event then, unless a Reinvestment Notice shall be delivered in ~~excess of (i)~~ respect thereof, such Net Cash Proceeds to the ~~greater of~~ extent exceeding $~~2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period~~ 5,000,000 in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.11(d); ~~provided~~ provided, that, notwithstanding the foregoing, (i) any Net Cash Proceeds of Asset Sales and Recovery Events shall be excluded from the foregoing requirement if a Reinvestment Notice shall be delivered, (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d) and (iii) no such prepayment shall be required as a result of any Disposition pursuant to Section 7.5(g) to the extent that, following the Closing Date and prior to the date of such Disposition, a prepayment has been made pursuant to Section 2.10(a) of Term Loans (which prepayment may be made utilizing the proceeds of a Revolving Loan); provided that the amount of prepayments that may be excluded pursuant to this clause (iii) shall be equal to the amount of such prepayments made pursuant to Section 2.10(a) and shall not exceed $125,000,000 in the aggregate; provided, further, that the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase any other Indebtedness that is secured by the Collateral on a pari passu basis with the Borrowings to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof (and such requirement has not been declined or waived) with the proceeds of such Asset Sale or Recovery Event, ~~shall be applied~~ in each case in an amount not to ~~prepay~~ exceed the ~~outstanding Term Loans as set forth in Section 2.11(g).~~ product of (dx) ~~Notwithstanding anything to~~ the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion amount of such Net Cash Proceeds ~~or Excess Cash Flow so affected will not be required to be applied to repay Loans at~~ and (y) a fraction, the ~~times set forth in this Section 2.11 but may be retained by~~ numerator of which is the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt outstanding principal amount of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as other Indebtedness and the ~~case may be, such distribution will be promptly effected~~ denominator of which is the aggregate outstanding principal amount of Term A Loans and such ~~distributed Net Cash Proceeds will be promptly~~ other Indebtedness (~~and in any event not later than 10 Business Days after such distribution~~c) ~~applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11~~[Reserved]. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section 2.11 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b) and, second, when the Term Loans have been paid in full, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section 2.11 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Universal Health Services Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2)~~8.2, ~~concurrently with,~~ other than paragraph 8.2(o) thereof (except to the extent the proceeds of such Indebtedness incurred in accordance with paragraph 8.2(o) are used to refinance the Bridge Loans or result in the mandatory reduction of the Delayed Draw Commitments (under and as ~~a condition to closing of such transaction~~defined in the Bridge Loan Agreement as in effect on the date hereof))), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within three Business Days of the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.13(e). (b) ~~Subject to clauses (d) and (i) of this Section 2.11~~If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, ~~if, for any Excess Cash Flow Period, there~~ unless a Reinvestment Notice shall be ~~Excess Cash Flow~~delivered in respect thereof within ten Business Days of such date, an amount equal to ~~(i) the ECF Percentage for~~ such ~~period~~ Net Cash Proceeds shall be applied within three Business Days of receipt of such ~~Excess~~ Net Cash ~~Flow over (ii) in each case at~~ Proceeds toward the ~~option~~ prepayment of the Term Loans as set forth in Section 2.13(e); provided, that the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied may without penalty withhold amounts owing pursuant to this Section ~~9.4,~~ 2.13(b) until such time as the ~~aggregate~~ amount of ~~(1)~~ Net Cash Proceeds received from all ~~Purchases by any Permitted Auction Purchaser (determined as~~ such Asset Sales and Recovery Events that would otherwise be required to be applied toward the ~~par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments~~ prepayment of Term Loans ~~and Revolving Loans (but,~~ pursuant to this Section 2.13(b) shall exceed $25,000,000 in the ~~case of Revolving Loans~~aggregate; provided, ~~only~~ further, that notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the ~~extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (~~Reinvestment Prepayment Amount with ~~credit given~~ respect to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount relevant Reinvestment Event shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.13(e). (gc) If, for any fiscal year of ~~this Section 2.11~~the Borrower commencing with the fiscal year ending December 31, ~~provided that no such prepayment~~ 2009, there shall be ~~made if~~ Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow ~~for any~~ Application Date, apply the ECF Percentage of such Excess Cash Flow ~~Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment~~toward the prepayment of the Term Loans as set forth in Section 2.13(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 three Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section ~~6.1(a~~7.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) ~~Notwithstanding anything to~~ If on any date the ~~contrary in this Agreement (including clauses (b) and (c) above)~~Total North American Revolving Extensions of Credit exceed the Total North American Revolving Commitments or the Total Canadian Revolving Extensions of Credit exceed the Total Canadian Revolving Commitments, ~~to the extent that~~ the Borrower ~~Representative has determined in good faith that (i) any of~~ shall, without notice or ~~all~~ demand, first, prepay the ~~Net Cash Proceeds of any Asset Sale~~ North American Revolving Loans or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Canadian Revolving Loans, ~~L/C Obligations and Swingline Loans at any time exceeds (~~as applicable, and, second, cash collateralize the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize North American Letters of Credit or Canadian Letters of Credit or Bankers’ Acceptances, as applicable (in a manner reasonably satisfactory to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), ~~appropriately completed and signed by~~ in an amount so as to eliminate such excess; provided, that if the Total North American Revolving Extensions of Credit exceed the Total North American Revolving Commitments solely as a ~~Responsible Officer~~ result of a change in the aggregate Dollar Equivalent Amount of the ~~Borrower Representative (on behalf of the Borrowers)~~North American Revolving Loans denominated in Canadian Dollars, ~~of each~~ no prepayment or cash collateralization shall be required ~~under this Section 2.11, which notice must be received by~~ unless the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and has notified the Borrower ~~Representative no later than 12:00 p.m. (New York City time), two Business Days after~~ that the ~~date~~ Total North American Revolving Extensions of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation Credit exceed 105% of the ~~amount~~ Total North American Revolving Commitments for a period of ~~such prepayment~~five consecutive Business Days. (ge) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to paragraphs (a), (b) or (c) of this Section ~~2.11~~ 2.13 shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~2.19(b). The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.13 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans or Canadian Prime Rate Loans, as the case may be, second, to Eurodollar Loans and, third, to Banker’s Acceptances. Each prepayment of the Loans under this Section ~~2.11~~ 2.13 (except in the case of Revolving Loans that are ABR Loans, Canadian Prime Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ or Bankers’ Acceptances and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) Notwithstanding ~~any of~~ anything to the ~~other provision of this~~ contrary in Section ~~2.11~~2.13(e) or 2.19, ~~if any prepayment of Eurocurrency Loans is required~~ with respect to ~~be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ the amount of any mandatory prepayment described in Section 2.13 that is allocated to Tranche A-1 Term Loans and Tranche A-2 Term Loans (such ~~prepayment otherwise required to be made thereunder with~~ amount, the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period“Tranche A Prepayment Amount”), at ~~which~~ any time when Tranche B Term Loans remain outstanding, the ~~Administrative Agent shall be authorized (without any further action by or notice to or from any~~ Borrower ~~or any other Loan Party) to apply~~ will, in lieu of applying such amount to the prepayment of ~~such Eurocurrency~~ Tranche A-1 Term Loans and Tranche A-2 Term Loans as provided in ~~accordance with this Section 2.11~~ paragraph (~~determined as of~~ e) above, on the date specified in Section 2.13 for such ~~prepayment was required~~ prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to ~~be originally made); provided that~~ each Tranche A-1 Term Lender and Tranche A-2 Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such ~~unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon~~ notice from the ~~occurrence and during the continuance of any Event of Default~~Borrower, the Administrative Agent will send to each Tranche A-1 Term Lender and Tranche A-2 Term Lender a Prepayment Option Notice, which shall ~~also~~ be ~~authorized (without any further action~~ in the form of Exhibit F, and shall include an offer by ~~or notice~~ the Borrower to ~~or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of~~ prepay on the date ~~such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause~~ (heach a “Mandatory Prepayment Date”) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of ~~such rejection) be applied to prepay~~ the Prepayment Option Notice, the relevant Tranche A-1 Term Loans ~~in accordance with the terms hereof (~~and/or Tranche A-2 Term Loans of such Lender by an amount equal to the ~~extent~~ portion of the Tranche A Prepayment Amount indicated in such ~~Net Cash Proceeds or Excess Cash Flow would otherwise have been required~~ Lender’s Prepayment Option Notice as being applicable to ~~be applied if~~ such ~~Other Applicable Indebtedness was not then outstanding)~~Lender’s Tranche A-1 Term Loans and/or Tranche A-2

Appears in 1 contract

Sources: Credit Agreement (Precision Drilling Trust)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, upon any sale, issuance or incurrence of Indebtedness ~~shall be incurred by any Group Member~~ (other than ~~any~~ Indebtedness permitted pursuant to ~~be incurred by any such Person in accordance with~~ Section 7.2)) by the Borrower, ~~concurrently with, and as a condition to closing of such transaction, an amount equal to 100%~~ then upon receipt of the Net Cash Proceeds ~~thereof~~ from such sale, issuance or incurrence, the Term Loans and the Delayed Draw Term Loans shall be prepaid, and/or the Revolving Credit Commitments shall be reduced, by an amount equal to the amount of such Net Cash Proceeds, as set forth in Section 2.13(e). (b) Unless the Required Prepayment Lenders shall otherwise agree, on any date the Borrower or any of its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale the Term Loans and the Delayed Draw Term Loans shall be prepaid, and/or the Revolving Credit Commitments shall be reduced by an amount equal to the amount of such Net Cash Proceeds, which prepayments and reductions shall be applied as set forth in Section 2.13(e); provided, that: (i) if (x) no Default or Event of Default would exist or arise therefrom and (y) not later than ten (10) Business Days after the date of the receipt by the Borrower of the Net Cash Proceeds from any Asset Sale, Borrower shall have delivered to Administrative Agent a Reinvestment Notice stating the amount of such Net Cash Proceeds which is intended to be reinvested, directly or indirectly, in assets otherwise permitted pursuant to this Agreement prior to the Reinvestment Prepayment Date with respect to such Reinvestment Notice, then the amount set forth in such Reinvestment Notice as intended to be reinvested shall not be required to be applied as set forth in this Section 2.13(b); (ii) to the extent such Net Cash Proceeds are from an Asset Sale of Collateral, the assets in which such Net Cash Proceeds are reinvested must also be Collateral; and (iii) if all or any portion of such Net Cash Proceeds are not reinvested in assets in accordance with the applicable Reinvestment Notice (and in the case of Net Cash Proceeds from an Asset Sale of Collateral, in compliance with clause (ii) above) on or prior to the applicable Reinvestment Payment Date, such remaining portion shall be applied on the applicable Reinvestment Payment Date to prepay Term Loans and/or the Delayed Draw Term Loans and/or to reduce the Revolving Credit Commitments, all in accordance with Section 2.13(e). (c) Unless the Required Prepayment Lenders shall otherwise agree, on any date the Borrower or any of ~~such issuance or incurrence toward the prepayment of~~ its Restricted Subsidiaries shall receive Net Cash Proceeds from any Recovery Event the Term Loans and the Delayed Draw Term Loans shall be prepaid, and/or the Revolving Credit Commitments shall be reduced by an amount equal to the amount of such Net Cash Proceeds, which prepayments and reductions shall be applied as set forth in Section 2.13(e); provided, that (i) if (x) no Default or Event of Default would exist or arise therefrom and (y) not later than ten (10) Business Days after the date of the receipt by the Borrower of the Net Cash Proceeds from any Recovery Event, Borrower shall have delivered to Administrative Agent a Reinvestment Notice stating the amount of such Net Cash Proceeds which is intended to be reinvested, directly or indirectly, in assets otherwise permitted pursuant to this Agreement prior to the Reinvestment Payment Date with respect to such Reinvestment Notice, then the amount set forth in such Reinvestment Notice as intended to be reinvested shall not be required to be applied as set forth in this Section 2.13(c); (ii) to the extent such Net Cash Proceeds are from a Recovery Event with respect to Collateral, the assets in which such Net Cash Proceeds are reinvested must also be Collateral; and (iii) if all or any portion of such Net Cash Proceeds are not reinvested in assets in accordance with the applicable Reinvestment Notice (and in the case of Net Cash Proceeds from a Recovery Event with respect to Collateral, in compliance with clause (gii) above) on or prior to the applicable Reinvestment Payment Date, such remaining portion shall be applied on the applicable Reinvestment Payment Date to prepay Term Loans and/or the Delayed Draw Term Loans and/or to reduce the Revolving Credit Commitments, all in accordance with Section 2.13(e); provided, however, that if any portion has not been used prior to the applicable Reinvestment Payment Date and Borrower is diligently pursuing the reinvestment of such amount, then such application of the remaining portion shall not be required for so long as such reinvestment is being diligently pursued. Notwithstanding the foregoing provisions of Section 2.13(b) and Section 2.13(c), up to $50,000,000 of Net Cash Proceeds of Asset Sales and Recovery Events received by Borrower and its Restricted Subsidiaries during the term of this Agreement, shall be excluded from the mandatory prepayment provisions contained in Section ~~2.11~~2.13(b) and Section 2.13(c). (~~b) Subject to clauses (~~d) ~~and (i) of this Section 2.11~~Unless the Required Prepayment Lenders shall otherwise agree, ifcommencing with fiscal year 2006, ~~for any Excess Cash Flow Period,~~ if there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shallthen, on the relevant Excess Cash Flow Application Date, ~~be applied toward the prepayment of~~ the Term Loans and the Delayed Draw Term Loans shall be prepaid and/or the Revolving Credit Commitments shall be reduced, by an amount equal to 50% of such Excess Cash Flow, as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.13(e). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ~~10 Business Days~~ five (5) days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to clauses (a), (b), (c), or (d) of this Section ~~2.11~~ 2.13 shall be allocated, first, (i) prior to the expiration of the Delayed Draw Term Loan Commitment Period, all such amounts shall be allocated pro rata to the Term Loan Facility and the Delayed Draw Term Loan Facility, to be applied (x) with respect to the Term Loan Facility, for the benefit of all Term Loan Lenders in accordance with their respective Term Loan Percentages as a prepayment towards the Term Loans and (y) with respect to the Delayed Draw Term Loan Facility, the then unfunded Delayed Draw Term Loan Commitments will be reduced by the lesser of the amount of such prepayment allocated to the Delayed Draw Term Loan Facility and the then amount of the unfunded Delayed Draw Term Loan Commitments, and if the amount of such prepayment applied to the Delayed Draw Term Loan Facility is greater than the then unfunded Delayed Draw Term Loan Commitments, such excess shall be allocated, for the benefit of all Delayed Draw Term Loan Lenders in accordance with their respective Delayed Draw Term Loan Percentages as a prepayment towards the funded Delayed Draw Term Loans; and (ii) after the Delayed Draw Term Loan Termination Date, all such amounts shall be allocated pro rata towards the prepayment of the Term Loans ~~in accordance with Section 2.17(b)~~and the funded Delayed Draw Term Loans, and second, to reduce permanently the Revolving Credit Commitments; provided that the Revolving Credit Commitments shall not be required to be reduced below $250,000,000. ~~The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment~~ Any such reduction of the ~~Loans under this Section 2.11 (except in the case of~~ Revolving ~~Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ Credit Commitments shall be accompanied by ~~accrued interest~~ prepayment of the Revolving Credit Loans and/or Swing Line Loans to the ~~date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11~~extent, if ~~any prepayment~~ any, that the Total Revolving Extensions of ~~Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ Credit exceed the amount of ~~any~~ the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such ~~prepayment otherwise required to be made thereunder with~~ excess (because L/C Obligations constitute a portion thereof), the ~~Administrative Agent~~Borrower shall, to ~~be held as security for~~ the ~~obligations~~ extent of the ~~applicable Borrower to make~~ balance of such ~~prepayment pursuant to~~ excess, replace outstanding Letters of Credit and/or deposit an amount in Cash into a cash collateral ~~agreement~~ account subject to ~~be entered into on terms~~ documentation reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereinAgent. (if) ~~Notwithstanding the foregoing provisions of this Section 2.11, at the~~ The Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment shall provide each of the Term Loan Lenders and the Delayed Draw Term Loan Lenders with five (5) Business Days prior written notice of each such prepayment and any Term Loan Lender or Delayed Draw Term Loan Lender, at its option, may elect, so long as there are any Term Loans ~~pursuant~~ or Delayed Draw Term Loans outstanding, not to ~~Section 2.11(b) and/or~~ accept its ratable portion of such prepayment in which event the provisions of the next sentence shall apply. Any Term Loan Lender or Delayed Draw Term Loan Lender declining such prepayment (~~c),~~ each such Lender being a “Declining Term Loan Lender” and the amount of ~~any~~ such Lender’s ratable portion of such prepayment ~~required~~ being the “Declined Term Amount”) shall give written notice to the Administrative Agent substantially in the form of Exhibit S (each, a “Declining Lender Notice”), by 11:00 A.M. (New York City Time) on the Business Day immediately preceding the date on which such prepayment would otherwise be made and then the Declined Term Amount for all Declining Term Loan Lenders may be retained by the Borrower; provided, that if part or all of a Declined Term Amount consists of proceeds from the sale or other disposition of Collateral (“Collateral Proceeds”), the portion of any Declined Term Amount that consists of Collateral Proceeds shall be paid to all Lenders that are not Declining Term Loan Lenders (the “Accepting Term Loan Lenders,” and each such Accepting Term Loan Lender being an “Accepting Term Loan Lender”) on a pro-rata basis based upon the total amount outstanding (including all accrued but unpaid interest) then owed by Borrower to each such Accepting Term Loan Lender along with any prepayment amount to be ~~made hereunder~~ paid pursuant to this Section 2.13; provided, further, that in the event that the Collateral Proceeds exceed the total amount owed to Accepting Term Loan Lenders following mandatory prepayments under this Section 2.13 (other than the Collateral Proceeds), such amount shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (returned to the ~~extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)~~Borrower.

Appears in 1 contract

Sources: Credit Agreement (Pinnacle Entertainment Inc)

Mandatory Prepayments and Commitment Reductions. (a) If for any reason (x) the Total Revolving Extensions of Credit exceeds the lesser of (xi) the Total Revolving Commitments then in effect and (y)ii) the Maximum Permitted Outstanding Amount or (y) the sum of the Total Extensions of Credit plus the Total CMBX Termination Liability exceeds the Maximum Permitted Outstanding Amount, the Borrowers shall immediately prepay the applicable Loans in an aggregate amount equal to such excess. (b) [Reserved] (c) [Reserved] (d) If any Indebtedness shall be incurred ~~by any Group Member (other than any Indebtedness permitted~~ pursuant to ~~be incurred by any such Person in accordance with~~ Section ~~7.2~~7.2(h)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be immediately applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11Loans. (e) In Any reduction of the ~~event~~ Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate ~~Outstanding Amount~~ principal amount of Revolving ~~Loans,~~ Loans then outstanding is less than the amount of such excess (because L/C Obligations ~~and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect~~constitute a portion thereof), the ~~Revolving~~ Borrowers ~~shall immediately (or~~shall, ~~if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit~~ to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the ~~Borrower Representative (~~balance of such excess, cash collateralize on ~~behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (~~or ~~such shorter time as the Administrative Agent shall reasonably agree)~~ prior to the date ~~such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender~~ of such ~~notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause~~ reduction (bin the manner described in Section 3.9) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date replace outstanding Letters of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b)Credit. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Revolving Loans under ~~this~~ Section ~~2.11~~ 2.6 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Colony Credit Real Estate, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock shall be issued by any Group Member (excluding Capital Stock issued to a Loan Party), concurrently with, and as a condition to closing of such transaction, an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(g). (b) If any Indebtedness shall be issued or incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted to be incurred ~~by any such Person~~ in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(g). (bc) ~~Subject~~ If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, concurrently with, and as a condition to ~~clauses~~ closing of such transaction, on such date such Net Cash Proceeds shall be offered to prepay the Canadian Borrower Term Loans and any Delayed Draw Term Loans and applied toward the prepayment of the UK Borrower Dollar Term Loans and the UK Borrower Euro Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(g); provided, that, notwithstanding the foregoing, (x) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of Holdings and (y) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be offered to prepay the Canadian Borrower Term Loans and any Delayed Draw Term Loans and applied toward the prepayment of the UK Borrower Dollar Term Loans and the UK Borrower Euro Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(g). (d) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period~~fiscal year of Holdings commencing with the fiscal year ending June 30, 2007, there shall be Excess Cash Flow, ~~an amount equal to (i)~~ the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, Borrowers shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause~~ Section 2.11(g) an amount equal to (gi) 50% of ~~this Section 2.11, provided that no~~ such ~~prepayment shall be made if the~~ Excess Cash Flow ~~for any Excess Cash Flow Period is less than $10,000,000~~ minus (~~and~~ii) to the extent not funded with the proceeds of Indebtedness, ~~if Excess Cash Flow exceeds~~ (x) the aggregate amount of all prepayments of Revolving Loans and Swingline Loans during such ~~amount, only~~ fiscal year (or other period) to the extent accompanying permanent optional reductions of the Revolving Commitments in respect of such ~~excess shall be subject to prepayment)~~Revolving Loans and (y) all optional prepayments of the Term Loans during such fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ Holdings referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) ~~In the event~~ If, at any time, the aggregate ~~Outstanding Amount~~ amount of the Canadian Borrower Revolving ~~Loans, L/C Obligations and Swingline Loans at any time~~ Extensions of Credit of the Lenders then outstanding exceeds either (~~the “Revolving Excess”~~i) the ~~Total~~ Canadian Borrower Borrowing Base or (ii) the aggregate amount of the Canadian Borrower Revolving ~~Commitments then in effect~~Commitments, the ~~Revolving Borrowers~~ Canadian Borrower shall immediately ~~(or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and~~ prepay the Canadian Borrower Revolving Loans ~~and Collateralize Letters of Credit~~ to the ~~extent necessary~~ Administrative Agent on behalf of the Canadian Borrower Revolving Lenders in an amount equal to ~~remove~~ such ~~Revolving Excess~~excess. (f) ~~The~~ If, at any time, the aggregate amount of the US Borrower ~~Representative~~ Revolving Extensions of Credit of the Lenders then outstanding exceeds either (i) the US Borrower Borrowing Base or (ii) the aggregate amount of the US Borrower Revolving Commitments, the US Borrower shall ~~deliver~~ immediately prepay the US Borrower Revolving Loans to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the ~~Borrowers~~US Borrower Revolving Lenders in an amount equal to such excess; provided that if the aggregate principal amount of US Borrower Revolving Loans then outstanding is less than the amount of such excess (because US Borrower L/C Obligations constitute a portion thereof), the US Borrower shall, to the extent of ~~each prepayment required under this Section 2.11~~the balance of such excess, ~~which notice must be received by~~ replace outstanding US Borrower Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent ~~not less than three Business Days (or such shorter time as~~ for the ~~Administrative Agent shall reasonably agree) prior~~ benefit of the US Borrower Lenders on terms and conditions satisfactory to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The US Borrower ~~Representative~~ shall ~~deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth~~ prepay $11,536,350 in ~~reasonable detail the calculation of the~~ aggregate principal amount of ~~such prepayment~~Closing Date US Borrower Revolving Loans on the Cleandown Date. (g) Amounts to be applied in connection with ~~any mandatory~~ offers to prepay, prepayments and Commitment reductions made pursuant to clauses (a) through (d) of this Section 2.11 shall be ~~applied~~ applied, first, to the prepayment (or prepayment offer, as applicable) of the Term Loans in accordance with Section 2.17(b) and, second, to reduce permanently the Revolving Commitments in accordance with Section 2.17(c); provided that any Term Lender may decline to accept any prepayment amount that would otherwise be required to be applied to prepay the Term Loans in accordance with the foregoing clause first (any such declined prepayments, “Declined Amounts”), and any such Declined Amounts shall be applied to the prepayment, in accordance with Section 2.17(b), of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts (any such Declined Amounts remaining after application in accordance with the foregoing provisions of this proviso may be retained by the applicable Borrower); and provided, further, that notwithstanding the foregoing, if the application provided for in this sentence of any prepayment amounts under Section 2.11(a), (b) or (d) towards the prepayment of the Canadian Borrower Term Loans and the Delayed Draw Term Loans (together with (x) other mandatory prepayments of the Canadian Borrower Term Loans and the Delayed Draw Term Loans made pursuant to Section 2.11(a), (b) or (d) and (y) amortization payments made in respect of the Canadian Borrower Term Loans and the Delayed Draw Term Loans pursuant to Section 2.3) would cause more than 25% of the original outstanding principal amount of any Canadian Borrower Term Loan or any Delayed Draw Term Loan borrowed on any Delayed Draw Date to be repaid on or before the applicable Catch-Up Date, then, solely to the extent necessary to avoid such repayment within such time period, the relevant amount of any prepayment which would have otherwise been allocated to such Canadian Borrower Term Loans or such Delayed Draw Term Loans, as applicable (each, a “Deposited Prepayment Amount”) shall instead be deposited in the Prepayment Collateral Account. Any reduction of the Canadian Borrower Revolving Commitments pursuant to this Section 2.11(g) shall be accompanied by prepayment of the Canadian Borrower Revolving Loans to the extent, if any, that the Total Canadian Borrower Revolving Extensions of Credit exceed the amount of the Total Canadian Borrower Revolving Commitments as so reduced. Any reduction of the US Borrower Revolving Commitments pursuant to this Section 2.11(g) shall be accompanied by prepayment of the US Borrower Revolving Loans and/or Swingline Loans to the extent, if any, that the Total US Borrower Revolving Extensions of Credit exceed the amount of the Total US Borrower Revolving Commitments as so reduced, provided that if the aggregate principal amount of US Borrower Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because US Borrower L/C Obligations constitute a portion thereof), the US Borrower shall, to the extent of the balance of such excess, replace outstanding US Borrower Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the US Borrower Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. (h) On the first day following the Catch-Up Date with respect to any Canadian Borrower Term Loans or Delayed Draw Term Loans, such Canadian Borrower Term Loans or Delayed Draw Term Loans, as the case may be, shall be prepaid, on a pro rata basis in accordance with Section 2.17(b), in an amount equal to the aggregate of all Deposited Amortization Payment Amounts and Deposited Prepayment Amounts originally deposited in the Prepayment Collateral Account in respect of such Canadian Borrower Term Loans or Delayed Draw Term Loans; provided that the amount of any such prepayment shall be decreased by the amount of any voluntary prepayments of such Canadian Borrower Term Loans or Delayed Draw Term Loans, as the case may be, made with funds held in the Prepayment Collateral Account. (i) The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans under any Facility that are ABR Loans (to the extent all Revolving Loans under such Facility are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hj) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application With respect to any ~~Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i~~Net Cash Proceeds or Reinvestment Prepayment Amount described in Section 2.11(c) ~~Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness~~ that is ~~secured by the Collateral on a pari passu basis (determined without regard~~ allocated to ~~the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the~~ Canadian Borrower Term Loans or Delayed Draw Term Loans pursuant to Section ~~2.11(b~~2.17(b) ~~and/or~~ (csuch amounts, the “Prepayment Offer Amounts”), the Canadian Borrower will, on the applicable date specified in Section 2.11(c), give the Administrative Agent telephonic notice (promptly confirmed in writing) specifying the Type of each Canadian Borrower Term Loan and Delayed Draw Term Loan being offered to be prepaid and the principal amount of ~~any~~ each such Loan (or portion thereof) being offered to be prepaid, and shall provide to each Canadian Borrower Term Lender notice of such prepayment ~~required to be made hereunder~~ offer (each, a “Prepayment Offer Notice”). Each Prepayment Offer Notice shall ~~be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to~~ (~~and not in excess of~~i) include an offer by the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied Borrower to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 date that is ten Business Days after the date of the Prepayment Offer Notice, the relevant Canadian Borrower Term Loans and Delayed Draw Term Loans of such ~~rejection~~Lender in an amount equal to the portion of the Prepayment Offer Amount indicated in such Lender’s Prepayment Offer Notice as being applicable to such Lender’s Canadian Borrower Term Loans and Delayed Draw Term Loans, (ii) specify the Type of each Loan being prepaid and (iii) set forth the option of each Canadian Borrower Term Lender to (x) accept or decline such offer or (y) accept Declined Amounts. Each Canadian Borrower Term Lender shall notify the Administrative Agent no later than 12:00 Noon, New York City time on the Business Day immediately preceding the date on which such prepayment is to be ~~applied~~ made of its intent to ~~prepay~~ accept such offer for prepayment or decline such offer (and, if such offer is accepted by such Canadian Borrower Term Lender, the amount of Canadian Borrower Term Loans and Delayed Draw Term Loans with respect to which such Canadian Borrower Term Lender shall elect to accept the offer of prepayment and whether such Canadian Borrower Term Lender shall accept Declined Amounts); provided that to the extent any Canadian Borrower Term Lender shall not notify the Administrative Agent by such time, such Canadian Borrower Term Lender shall be deemed to have accepted such offer for prepayment and not elected to accept Declined Amounts. Subject to Section 2.11(i), the Canadian Borrower shall pay the aggregate amount allocated to the Canadian Borrower Term Loans and Delayed Draw Term Loans to the Canadian Borrower Term Lenders that have accepted such offer for prepayment pro rata with respect to each Canadian Borrower Term Lender, according to the amount of Canadian Borrower Term Loans and Delayed Draw Term Loans which such Canadian Borrower Term Lender has elected to have prepaid and the aggregate amount of Canadian Borrower Term Loans and Delayed Draw Term Loans such Lenders have elected to have prepaid. After application of mandatory prepayments of the Canadian Borrower Term Loans and Delayed Draw Term Loans as described above in this Section 2.11(j) and to the extent there are prepayment amounts remaining after such application, an amount equal to the total of such amounts shall be paid first, by the UK Borrower to the prepayment of the UK Borrower Dollar Term Loans and the UK Borrower Euro Term Loans in accordance with Sections 2.11(g), 2.11(k) and 2.17(b) and, second, by the ~~terms hereof~~ relevant Borrowers to reduce permanently the Revolving Commitments in accordance with Section 2.17(c). (k) Holdings shall deliver to the ~~extent~~ Administrative Agent and each Lender a Notice of Prepayment with respect to each prepayment and/or Commitment reduction required under this Section 2.11 not less than five Business Days prior to the date such ~~Net Cash Proceeds~~ prepayment and/or Commitment reduction shall be made (each, a “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the principal amount of each Loan (or ~~Excess Cash Flow would otherwise have been required~~ portion thereof) to be ~~applied if~~ prepaid and the amount of any Commitment reduction, (iii) the Type of each Loan being prepaid, and (iv) the option of each Term Lender to (x) decline its share of such ~~Other Applicable Indebtedness was~~ prepayment or (y) accept Declined Amounts. Any Term Lender that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify the Administrative Agent by facsimile transmission not ~~then outstanding)~~later than 12:00 Noon, New York City time on the Business Day immediately preceding the Mandatory Prepayment Date. Any Term Lender that does not provide written notice of the exercise of any such options on or prior to the Business Day prior to the Mandatory Prepayment Date shall be deemed to have accepted such prepayment and not elected to accept such Declined Amounts. Holdings shall deliver to the Administrative Agent, at the time of each prepayment or Commitment reduction required under this Section 2.11, a certificate signed by a Responsible Officer of Holdings setting forth in reasonable detail the calculation of the amount of such prepayment or Commitment reduction.

Appears in 1 contract

Sources: Credit Agreement (Dollar Financial Corp)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock or Indebtedness shall be ~~incurred~~ issued or Incurred by Holdings or any ~~Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing~~ of ~~such transaction~~its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or ~~incurrence~~ Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of~~ Section 2.11(d); provided that no such prepayment and reduction shall be required pursuant to this Section ~~2.11~~2.11(a) with respect to (i) Designated Equity Amounts, (ii) any such Net Cash Proceeds from the issuance of Capital Stock which is applied within five Business Days after the receipt thereof by the Company and its Subsidiaries to repay Indebtedness Incurred in reliance upon the provisions of Section 7.2(i) or (j) hereof, (iii) other than to the extent set forth therein, Indebtedness Incurred in accordance with Section 7.2, (iv) any Net Cash Proceeds from the issuance of Capital Stock by Holdings or the Incurrence of Indebtedness by Holdings or New Intermediate Holdco which are used to finance the AHYDO Payment and (v) up to $20,000,000 in aggregate Net Cash Proceeds from the issuance of Capital Stock by Holdings after the Closing Date. (b) ~~Subject to clauses (d)~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d); ~ that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of ~~this~~ Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $4,000,000 in any fiscal year of Details and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11~~2.11(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for ~~any Excess Cash Flow Period~~the period beginning on the Closing Date and ending on December 31, 1999 and for each fiscal year of Details thereafter, there shall be Excess Cash Flow, ~~an amount equal to (i)~~ the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, Borrowers shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ Details referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section 2.11 shall be ~~applied~~ applied, first to the prepayment of the Term Loans (pro rata among the Tranche A Term Loans and the Tranche B Term Loans, based upon the outstanding principal amount thereof) and, ~ to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans and/or Swing Line Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swing Line Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. ~~The~~ Subject to the immediately preceding sentence, the application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first to ABR Loans and second to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 (except in the case of Revolving Credit Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such All unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made owing hereunder shall be ~~reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (~~due and ~~not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale~~payable on April 22, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)2005.

Appears in 1 contract

Sources: Credit Agreement (Ddi Corp)

Mandatory Prepayments and Commitment Reductions. (a) If on any ~~Indebtedness~~ date the US Borrower or any of its Subsidiaries shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the receive Net Cash Proceeds ~~thereof~~ from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied ~~on the date of such issuance or incurrence~~ within three Business Days toward the prepayment of the Term Loans as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments4.06(d), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (; provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans as set forth in Section ~~2.11(g~~4.06(d). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (~~b) ~~and (c) above), to~~ If on any date the ~~extent that the~~ US Borrower ~~Representative has determined in good faith that (i)~~ or any of ~~or all~~ its Subsidiaries shall receive Net Cash Proceeds from any Capital Market Transactions, then an amount equal to 75% of the Net Cash Proceeds ~~of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries~~ from such Capital Market Transaction (~~or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated~~ to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of extent such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as together with the ~~case may be, such distribution will be promptly effected and such distributed~~ Net Cash Proceeds ~~will~~ from prior Capital Market Transactions after the Original Closing Date are in excess of $200,000,000) shall be ~~promptly (and in any event not later than 10~~ applied within five Business Days ~~after~~ of such ~~distribution) applied (net of additional Taxes payable~~ issuance or ~~reserved against as a result thereof)~~ incurrence to the ~~repayment~~ prepayment of the Term Loans ~~pursuant~~ as set forth in Section 4.06(d); provided, that, notwithstanding the foregoing, any Net Cash Proceeds from any Capital Market Transactions of less than $200,000,000 shall be applied to ~~this Section 2.11~~prepay any amounts outstanding under the Revolving Credit Facility. (ec) In On the ~~event~~ Effective Date, if after giving effect to the reduction provided in Section 4.03(a)(i), (x) the aggregate ~~Outstanding Amount~~ Revolving Credit Exposures of all the Lenders exceeds the aggregate US Revolving ~~Loans, L/C Obligations and Swingline Loans at any time exceeds~~ Commitments or (~~the “Revolving Excess”~~y) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and aggregate principal amount of outstanding Mexican Revolving Loans ~~and Collateralize Letters of Credit to~~ exceeds $100,000,000, then the ~~extent~~ US Borrower or the Mexican Borrower, as applicable, shall repay the applicable Revolving Loans in amounts necessary to ~~remove such Revolving Excess~~be in compliance with this Agreement.[Reserved]. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 4.06(a) or (b) shall be applied to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~4.13(a)(iii). The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 4.06 shall be ~~made on~~ made, first, to ABR Loans and, second, to Eurodollar Loans in a ~~pro rata basis regardless of Type~~manner that minimizes amounts due under Section 4.11. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 4.06 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Navistar International Corp)

Mandatory Prepayments and Commitment Reductions. (a) If the Borrower or any of its Subsidiaries (or Holdings on behalf of the Borrower or any of its Subsidiaries) shall receive Net Cash Proceeds (to the extent that amounts are available for application to the Lenders pursuant to Section 5.2 of the Intercreditor Agreement) from any: (i) Asset Sale, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Recovery Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments to the extent contemplated by Section 6.20, the Depositary Agreement and as set forth in Section 2.9(d). (ii) Recovery Event, it shall deposit (or cause to be deposited) upon receipt thereof such Net Cash Proceeds to the Recovery Event Proceeds Account and such Net Cash Proceeds shall be applied to the prepayment of the Loans, Cash Collateralization of Letters of Credit and reduction of all the Commitments to the extent contemplated by Section 6.18, the Depositary Agreement and as set forth in Section 2.9(d). 41 ▇▇▇▇▇ Wind – Credit Agreement (b) If any Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section 7.2)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence ~~toward~~ to the prepayment of Loans in the ~~Term Loans~~ inverse order of maturity and reduction of Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11. (b) Subject to clauses (d~~2.9(d) and ~~(i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii)~~ in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) accordance with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the LendersDepositary Agreement. (c) ~~Subject to clauses~~ The Borrower shall, on each Semi-Annual Payment Date (~~d) and~~ each, a “Sweep Date”), commencing on June 28, 2019: (i) ~~of this Section 2.11~~first, ~~if,~~ prepay the Term Loans outstanding on ~~any date, UK Holdco or any Restricted Subsidiary shall receive Net~~ such Semi-Annual Payment Date with Excess Cash ~~Proceeds from any Asset Sale or any Recovery Event in excess of (i)~~ Flow to prepay the ~~greater of $2,000,000 and 0.7% of Consolidated EBITDA as~~ outstanding principal amount of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in ~~accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date,~~ an amount equal to the ~~Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay~~ lesser of (A) the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing amount necessary to cause the ~~applicable Subsidiary or branch~~ outstanding principal amount of the Term Loans to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt equal the Target Debt Balance as of such ~~Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause~~ Semi-Annual Payment Date and (iiB) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation 100% of the amount of Excess Cash Flow (any Excess Cash Flow remaining as of such ~~prepayment~~Semi-Annual Payment Date after giving effect to the prepayments in this clause (i) is referred to as “Remaining Excess Cash Flow”); and (ii) second, (A) prepay the outstanding principal amount of the Term Loans with Remaining Excess Cash Flow in an amount equal to 50% of Remaining Excess Cash Flow as of such Semi-Annual Payment Date and (B) the remaining portion of such Remaining Excess Cash Flow shall be applied, subject to Section 7.6(b), as a Restricted Payment to the Sponsor (or its designee) or otherwise in accordance with the Depositary Agreement. (gi) Amounts to be applied in connection with ~~any mandatory~~ prepayments of Loans and reductions of Commitments made pursuant to ~~this Section 2.11~~ paragraphs (a) through (c) above shall be applied without penalty or premium (except for breakage costs, if any) as follows: (A) first, simultaneously to ~~the prepayment of~~ prepay the Term Loans in accordance with Section ~~2.17(b~~2.15(b) and pay any termination payments required to be paid under any Interest Rate Hedging Agreements in order to maintain compliance with Section 6.9; (B) second, to repay the Revolving Loans in accordance with Section 2.15(c); (C) third, to ratably Cash Collateralize any outstanding Letters of Credit; and (D) fourth, any amount remaining may be retained by the Borrower; provided that all of the Revolving Commitments shall have been terminated in accordance with Section 2.15(c). 42 ▇▇▇▇▇ Wind – Credit Agreement (ii) The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type.~~ made, first, to ABR Loans and, second, to Eurodollar Loans. (iii) Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (REV Renewables, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If On any Indebtedness shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied date on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to which (i) the ~~ECF Percentage for such period~~ outstanding Revolving Extensions of ~~such Excess Cash Flow over~~ Credit exceed the aggregate Revolving Commitments, (ii) ~~in each case at the option~~ any member of the ~~Borrower Representative and~~ Restricted Group shall receive Net Cash Proceeds from a Recovery Event, provided that five (5) Business Days shall have elapsed without a Reinvestment Notice being delivered to the ~~extent not funded with~~ Administrative Agent in respect thereof, (xiii) ~~the proceeds of~~ any Indebtedness ~~constituting “long term indebtedness” (or a comparable caption) under GAAP (~~other than Indebtedness ~~in respect~~ permitted under Section 22(a) of the Master Lease shall be issued or incurred by any ~~revolving credit facility)~~ member of the Restricted Group, or (yiv) ~~the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by~~ any ~~Permitted Auction Purchaser (determined as the par value~~ member of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary Group shall receive Net Cash Proceeds from any Asset ~~Sale or any Recovery Event in excess of (i)~~ Sale, the ~~greater of $2,000,000 and 0.7~~Borrower will apply 100% of ~~Consolidated EBITDA as~~ the amount of such excess in the ~~most recently ended Reference Period in any single transaction or series~~ case of ~~related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding~~ clause (i), ~~the greater of $5,000,000 and 1.6~~50% of ~~Consolidated EBITDA as of the most recently ended Reference Period for all~~ such Net Cash Proceeds in ~~any fiscal year, then, unless~~ the ~~Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business~~ case of clause (~~a “Reinvestment Event”~~ii), ~~an aggregate amount equal to~~ 100% of such Net Cash Proceeds ~~shall be applied within five Business Days~~ in the case of clause (iii), and 80% of such ~~date~~ Net Cash Proceeds in the case of clause (iv), to ~~prepay~~ repay Loans and, to the extent of any such amount remaining after repayment of all outstanding ~~Term~~ Loans (because of outstanding L/C Obligations), replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~this Section 2.11; provided that, notwithstanding~~ the ~~foregoing,~~ Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. On each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the prepayment of the Loans, replacement of outstanding ~~Term Loans~~ Letters of Credit and collateralization of L/C Obligations as set forth in ~~Section 2.11(g~~the first sentence of this subsection (a). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (~~b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory prepayments~~ Revolving Commitment reductions made pursuant to ~~this Section 2.11~~ subsection (c) below shall be applied to reduce permanently the ~~prepayment of~~ Revolving Commitments unless the ~~Term Loans~~ Required Lenders waive the same in accordance with Section ~~2.17(b~~10.1. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof). , the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. (c) The Revolving Commitments shall be reduced in the manner specified in clause (b) above automatically and without further act by any Person on any date on which the Reference Amount (as defined in the Master Lease) is reduced pursuant to the definition thereof. (d) The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence prepaid and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereindue under Section 2.15. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Caribou Coffee Company, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree in writing, if any ~~Indebtedness~~ Borrower shall ~~be incurred by any Group Member~~ receive (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the i) Net Cash Proceeds ~~thereof shall be applied on~~ from an Asset Transfer permitted under Section 8.1(e) but only to the ~~date~~ extent that such Net Cash Proceeds are from one or more Asset Transfers of ~~such issuance or incurrence toward the prepayment~~ Mortgaged Properties existing as of the ~~Term Loans as set forth~~ Closing Date and exceed $10,000,000 in ~~clause~~ any Fiscal Year (~~g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11~~the "Excess"), ~~if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over~~ (ii) ~~in each case at the option~~ Net Cash Proceeds from a Redevelopment Sale and Leaseback Transaction permitted under Section 8.1(f)(ii), (iii) Net Cash Proceeds from a Sale and Leaseback Transaction permitted under Section 8.1(f)(iii), or (iv) proceeds of ~~the Borrower Representative and~~ Debt permitted under Section 8.4(m), such Net Cash Proceeds (equal to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (butOriginal Property Value, in the case of ~~Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments),~~ clause (3a)(ii) ~~optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco~~ above and the ~~Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but,~~ Excess in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (ca)(i) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or ~~(iii)~~ proceeds of Debt in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (iiiv) above, ~~or no such material adverse Tax consequences would result from such distribution~~shall immediately following receipt by a Borrower, ~~as the case may be, such distribution will~~ be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) paid to the ~~repayment of Term Loans pursuant~~ Agent to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~accordance~~ Section 4.4(c). (b) Unless the Required Prepayment Lenders shall otherwise agree in writing, if any Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Transfers or Casualty Events (other than Net Cash Proceeds required to be paid to the Agent to the extent provided in Section 4.4(a)(i) above, or from Sale and Leaseback Transactions described in clauses (a)(ii) and (iii) above or a transaction described in clause (b), (c) or (d) of Section 8.1), then, within ten (10) days of providing the notice required under Section 7.3(f), such Borrower (for itself and on behalf of any Subsidiary effecting the Asset Transfer) shall apply such Net Cash Proceeds toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 4.4(c); provided, that, notwithstanding the foregoing, (i) the Borrowers may elect (a "Reinvestment Election") to exclude from the foregoing requirement amounts with respect to the relevant Asset Transfers or Casualty Events to the extent that such are to be reinvested in Reinvestment Assets (the "Reinvestment Amount") by delivering to the Agent a written Reinvestment Notice delivered with the information required under Section ~~2.17(b~~7.3(d) setting forth the anticipated Reinvestment Amount, whereupon the Borrowers and their Subsidiaries shall have 365 days from the date of such notice in which to reinvest such Reinvestment Amount in Reinvestment Assets; provided, that the Reinvestment Amounts so specified in any Fiscal Year (excluding insurance proceeds or condemnation awards for Casualty Events) shall not exceed $20,000,000 in the aggregate, provided, further, that after four (4) months following the end of the month to which the Reinvestment Notice relates, the Agent may in its sole but reasonable discretion establish reserves in respect of the Reinvestment Amount not yet reinvested and provided further, that on the Reinvestment Prepayment Date with respect to a Reinvestment Election, the Borrower shall pay to the Agent an amount equal to the Reinvestment Prepayment Amount, if any, for application as provided in Section 4.4(c). (c) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 4.4 shall be applied, first, to the prepayment of the Term Loans pro rata to the then unpaid amounts of the Term Loans, and second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment first, of the Swing Line Loans, and second, of the Revolving Loans, to the extent, if any, that the Total Outstanding Revolving Obligations exceed the amount of the Total Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swing Line Loans then outstanding is less than the amount of such excess (because Letter of Credit Obligations constitute a portion of the Total Outstanding Revolving Obligations), the Borrowers shall, to the extent of the balance of such excess, cause to be canceled outstanding Letters of Credit and/or deposit in a cash collateral account established with the Agent for the benefit of the Lenders, an amount in cash equal to 110% of the related Letter of Credit Obligations and otherwise on terms and conditions reasonably satisfactory to the Agent. The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ 4.4 shall be made ~~on a pro rata basis regardless~~ first to Prime-Based Loans of ~~Type~~the relevant Facility and second to Eurodollar Loans of the relevant Facility. Each prepayment of the Loans under this Section ~~2.11~~ 4.4 (except in the case of Revolving Loans that are ~~ABR~~ Prime-Based Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and ~~Swingline~~ Swing Line Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Penn Traffic Co)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding (i) any Indebtedness ~~permitted~~ incurred in accordance with Sections 7.2(a) through (e), and (ii) any Indebtedness incurred under Section 7.2(f) in connection with an acquisition of new Borrowing Base Properties or Mortgage Notes to be included in the computation of Borrowing Base Value which are permitted by Section 7.8(g), but including all other Indebtedness incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2(f)~~, concurrently with, and as a condition to closing of such transaction~~), an amount equal to ~~100~~50% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and Revolving Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(d). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined~~ a Reinvestment Notice shall have been delivered in ~~good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100~~50% of such Net Cash Proceeds shall be applied within five (5) Business Days of such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and Revolving Loans as set forth in ~~accordance with this~~ Section ~~2.11~~2.11(d); ~~provided~~ provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $50,000,000 in any fiscal year of the Borrower, (ii) if such Net Cash Proceeds are not reinvested within five (5) Business Days of the date such Net Cash Proceeds are received, the Borrower shall apply such Net Cash Proceeds within five (5) Business Days of the date of receipt to the repayment of the Revolving Credit Loans (without any corresponding reduction of the Revolving Commitments), (iii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the Revolving Loans as set forth in Section ~~2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above~~2.11(d), and to the extent that the Borrower ~~Representative~~ has ~~determined in good faith that (i) any of or all the~~ applied Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the ~~relevant Borrower(s) (including as a result~~ repayment of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise Revolving Loans pursuant to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, ~~or no~~ the Borrower shall reborrow Revolving Loans in the amount of the Reinvestment Prepayment Amount and apply such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) proceeds to the ~~repayment~~ prepayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans ~~and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess~~as set forth in Section 2.11(d). (fc) The Borrower ~~Representative~~ shall ~~deliver to~~ repay all outstanding Term Loans on the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”)Term Loan Maturity Date. The Borrower ~~Representative~~ shall ~~deliver to~~ repay all outstanding Revolving Loans on the ~~Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment~~Revolving Termination Date. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section 2.11 (other than the Net Cash Proceeds from the incurrence of Indebtedness secured by a Lien on a Borrowing Base Property) shall be ~~applied~~ applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b), second, to the prepayment of Swingline Loans (without any corresponding reduction of the Revolving Commitments), third, to the prepayment of Revolving Loans (without any corresponding reduction of the Revolving Commitments), and fourth, to cash collateralize Letters of Credit by depositing an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Revolving Lenders on terms and conditions satisfactory to the Administrative Agent. Amounts to be applied in connection with prepayments made pursuant to Section 2.11(a) from the Net Cash Proceeds from the incurrence of Indebtedness secured by a Lien on a Borrowing Base Property shall be applied, first, to the prepayment of Swingline Loans (without any corresponding reduction of the Revolving Commitments), second, to the prepayment of Revolving Loans (without any corresponding reduction of the Revolving Commitments), third to the prepayment of the Term Loans in accordance with Section 2.17(b), , and fourth, to cash collateralize Letters of Credit by depositing an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Revolving Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section 2.11 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Medical Properties Trust Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock shall be issued by Holdings on any date (other than issuances (a) to the Sponsor and its Control Investment Affiliates, (b) to management, employees, directors or consultants of Holdings or any of its Subsidiaries pursuant to any employee stock option or stock purchase plan or other employee benefit plan in existence from time to time, or (c) to other Persons to the extent the proceeds of such issuances are (i) concurrently applied to fund Permitted Acquisitions or (ii) utilized to increase permitted Net Cash Investment Costs pursuant to clause (iii) of Section 8.7(b)), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied (unless a Reinvestment Notice shall be delivered in respect thereof) on the date of such issuance toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(e); provided that (A) no such application of Net Cash Proceeds shall be required if, at the time of such issuance of Capital Stock, the Borrower’s Consolidated Leverage Ratio is less than 2.50:1.00 and (B) notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(e). (b) If any Indebtedness shall be incurred by any Group Member (other than ~~any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2~~Excluded Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments4.2(e), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) ~~Subject to clauses (d) and (i) of this Section 2.11, if,~~ If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale (including Allotted Dispositions and sales or issuances of Capital Stock of any Subsidiary of Holdings) or Recovery Event in excess of ~~(i) the greater of~~ $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, 500,000 then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding~~ toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~4.2(e); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.11(g~~4.2(e). (d) ~~Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above)~~If, ~~to the extent that~~ for any fiscal year of the Borrower ~~Representative has determined~~ commencing with the fiscal year ending December 31, 2008, there shall be positive Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~good faith that~~ Section 4.2(e). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than five Business Days after the earlier of (i) ~~any~~ the date on which the financial statements of ~~or all~~ the ~~Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable~~ Borrower referred to ~~Subsidiaries (or branches of Subsidiaries)~~ in Section 7.1(a), for the fiscal year with respect to which such prepayment is made, are ~~prohibited or delayed by applicable local law from being repatriated~~ required to be delivered to the ~~relevant Borrower(s) (including as a result of financial assistance~~ Lenders and ~~corporate benefit restrictions and fiduciary and statutory duties of the relevant directors),~~ (ii) the date such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11financial statements are actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 4.2 (except in the case of Revolving Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (if) Notwithstanding the ~~foregoing provisions~~ foregoing, upon its receipt of ~~this Section 2.11~~the proceeds of the Tranche B-2 Term Loans (other than any Tranche B-2 Term Loans resulting from the conversion of Existing Term Loans) on the Restatement Date, at the Borrower ~~Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies)~~ shall irrevocably deposit with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect Second Lien Notes Trustee all of such ~~Asset Sale, Recovery Event~~ proceeds plus any additional amounts necessary to defease or ~~Excess Cash Flow is required under~~ satisfy and discharge the ~~terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans~~ Second Lien Notes in accordance with the ~~terms hereof), unless such application would result in~~ indenture governing the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)Second Lien Notes.

Appears in 1 contract

Sources: Credit Agreement (Protection One Alarm Monitoring Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 or any Capital Stock issued by a Subsidiary to the Borrower or to another Subsidiary)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g~~Sections 2.11(d) ~~of this Section 2.11~~and 2.17(b). (b) ~~Subject to clauses (d~~If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect of a Recovery Event, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Sections 2.11(d) and ~~(i) of this Section 2.11~~2.17(b); provided, ifthat, ~~for any Excess Cash Flow Period, there shall be Excess Cash Flow~~on each Reinvestment Prepayment Date, an amount equal to ~~(i)~~ the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and~~ Reinvestment Prepayment Amount with respect to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount relevant Reinvestment Event shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in ~~clause~~ Sections 2.11(d) and 2.17(b). (gc) If, for any fiscal year of ~~this Section 2.11~~the Borrower commencing after the Closing Date, ~~provided that no such prepayment~~ there shall be ~~made if~~ Excess Domestic Cash Flow, the Borrower shall, on the relevant Excess Domestic Cash Flow Application Date, apply the Excess Cash Flow ~~for any~~ Percentage of such Excess Domestic Cash Flow ~~Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment~~toward the prepayment of the Term Loans as set forth in Sections 2.11(d) and 2.17(b). Each such prepayment shall be made on a date (an “"Excess Domestic Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share application of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be ~~applied~~ made, first, to ~~the prepayment of the Term~~ Base Rate Loans ~~in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant~~ and, second, to ~~this Section 2.11 shall be made on a pro rata basis regardless of Type~~Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 shall (~~except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid~~i) ~~and Swingline Loans) shall~~ be accompanied by accrued interest to the date of such prepayment on the amount prepaid. , (hii) ~~Notwithstanding any of the other provision of this Section 2.11, if~~ not be subject to any prepayment ~~of Eurocurrency Loans is required~~ penalties or premiums and (iii) be subject to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans owing pursuant to Section ~~2.11(b) and/or (c), and the amount of any~~ 2.20 in connection with such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)prepayment.

Appears in 1 contract

Sources: Credit Agreement (Inamed Corp)

Mandatory Prepayments and Commitment Reductions. (a) If If, after the Closing Date, any Indebtedness shall be incurred by the Borrower or any ~~Group Member~~ of its Restricted Subsidiaries (other than ~~any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2~~Excluded Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds ~~thereof~~ of such incurrence shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the ~~Term~~ Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~4.09(b). (b) ~~Subject to clauses (d) and (i) of this Section 2.11, if, for~~ If on any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ date the Borrower ~~Representative and to the extent not funded with (x) the proceeds~~ or any of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the its Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale which occurs after the Closing Date or from any Recovery Event ~~in excess of (i)~~ which occurs after the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal yearClosing Date, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied within ~~five~~ fifteen Business Days after receipt of such ~~date to prepay outstanding Term~~ Net Cash Proceeds toward the prepayment of the Loans as set forth in ~~accordance with this~~ Section ~~2.11~~4.09(b); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding Term~~ prepayment of the Loans as set forth in Section ~~2.11(g~~4.09(b); provided further that the portion of the Net Cash Proceeds allocable to ABL Priority Collateral shall first be applied in accordance with the Revolving Credit Facility Agreement for so long as the Revolving Credit Facility Agreement is in effect; provided further that if at the time that any such prepayment would be required under this Section 4.03(b), the Borrower is required to offer to repurchase or prepay any other Indebtedness permitted hereunder to be secured, and actually secured, on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with such Net Cash Proceeds (such Indebtedness required to be offered to be so repurchased or prepaid, the “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis to the prepayment of the Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 4.03(b) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount may be retained by the Borrower. (c) The Borrower shall, commencing with the fiscal year ended January 2, 2016, on each Excess Cash Flow Application Date, apply toward the prepayment of the Loans, as set forth in Section 4.09(b), an amount (which amount shall not be less than zero) equal to (v) the ECF Percentage of Excess Cash Flow for the fiscal year minus (w) the aggregate amount of all prepayments of loans under the Revolving Credit Facility Agreement (other than prepayments funded with proceeds of Indebtedness or the issuance of Capital Stock) during such fiscal year to the extent accompanying permanent optional reductions of the commitments under the Revolving Credit Facility Agreement minus (x) the aggregate amount of all optional prepayments of Term Loans (other than prepayments funded with proceeds of Indebtedness or the issuance of Capital Stock) during such fiscal year minus (y) without duplication, the aggregate amount of cash used by Holdings (to the extent financed with cash proceeds received from the Borrower), the Borrower or any Restricted Subsidiary to acquire Term Loans in accordance with Section 11.06(g) during such fiscal year (other than to the extent funded with the proceeds of Indebtedness or the issuance of Capital Stock). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) Business Days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 7.01(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered. (d) ~~Notwithstanding anything~~ The application of any prepayment pursuant to Section 4.03 shall be made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 4.03 shall be subject to Section 4.12 and shall be accompanied by accrued interest to the ~~contrary~~ date of such prepayment on the amount prepaid. (e) The Borrower shall notify the Administrative Agent in ~~this Agreement~~ writing of any mandatory prepayment of Loans required to be made pursuant to (~~including clauses~~ i) Section 4.03(a) at least three Business Days prior to the date of such prepayment and (bii) ~~and~~ Section 4.03(b) or (c) ~~above~~at least five Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each applicable Lender of the contents of the Borrower’s prepayment notice and of such Lender’s pro rata share or other applicable share of the prepayment. Each Term Lender may reject all or a portion of its pro rata share or other applicable share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 4.03(b) or (c) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m., New York City time, two (2) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure (unless the Borrower otherwise agrees (in its sole discretion)) will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be retained by the Borrower. (f) Notwithstanding any other provisions of this Section 4.03, (i) to the extent that ~~the Borrower Representative has determined in good faith that (i)~~ any of or all of the Net Cash Proceeds of any Asset Sale by or Recovery Event by of a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 4.03(b) (a “Foreign Disposition”) or Excess Cash Flow ~~attributable to Subsidiaries (or branches of Subsidiaries)~~ generated by a Foreign Subsidiary are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequencesUnited States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times ~~set forth~~ provided in this Section ~~2.11~~ 4.03 but may be retained by the applicable Foreign Subsidiary ~~or branch~~ so long, but only so long, as the applicable local law will not permit repatriation to the United States (the ~~Borrowers~~ Borrower hereby agreeing to cause the applicable Foreign Subsidiary ~~or branch~~ to promptly take ~~commercially reasonable~~ all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation ~~without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period~~ of ~~360 days from receipt~~ any of such affected Net Cash ~~Proceeds, if such repatriation becomes~~ Proceeds or Excess Cash Flow is permitted under ~~such~~ the applicable local law, ~~would not present a material risk as described in clause (ii) above, or no~~ such ~~material adverse Tax consequences would result from such distribution, as the case may be, such distribution~~ repatriation will be ~~promptly~~ immediately effected and such ~~distributed~~ repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than 10 two Business Days after such ~~distribution~~repatriation) applied (net of additional ~~Taxes~~ taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit 4.03 to the extent ~~necessary to remove such Revolving Excess.~~ provided herein and (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”ii) to the ~~Administrative Agent and~~ extent that the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth has determined in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application good faith that repatriation of any ~~prepayment~~ of ~~Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of~~ or all the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds of any Foreign Disposition or Excess Cash Flow ~~may be applied~~ generated by a Foreign Subsidiary would have a material adverse tax consequence with respect to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the ~~declined~~ Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause (ii), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 4.03 (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), (x) the Borrower applies an amount of equal to such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would ~~otherwise~~ have been ~~required to be applied~~ payable or reserved against if such ~~Other Applicable~~ Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness ~~was not then outstanding)~~of a Foreign Subsidiary.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Roundy's, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any ~~Indebtedness~~ Capital Stock shall be ~~incurred~~ issued by any Group Member to any Person that is not a Group Member (other than ~~any Indebtedness permitted~~ Capital Stock of the U.S. Borrower issued (x) to ~~be incurred by any such Person~~ employees of the U.S. Borrower and its Subsidiaries pursuant to the U.S. Borrower's 401(k) plan or to employees of the Canadian Borrower and its Subsidiaries pursuant to the Robin Hood Stock Purchase Plan or (y) in ~~accordance~~ connection with ~~Section 7.2~~the exercise ▇▇ ▇▇▇▇▇▇▇ issued to employees, consultants and directors of the U.S. Borrower and its Subsidiaries)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to ~~100~~50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments and Canadian Swingline Commitment as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.18(e). (b) ~~Subject~~ If any Indebtedness shall be issued or incurred by any Group Member subsequent to ~~clauses~~ the Closing Date (excluding (i) any refinancing of the Bridge Facility permitted under this Agreement to the extent the proceeds of any such refinancing are applied to repay the Bridge Facility and (ii) any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments and Canadian Swingline Commitment as set forth in Section 2.18(e). (c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event which, when aggregated with all other Net Cash Proceeds from Asset Sales or Recovery Events, respectively, theretofore received by the Group Members during the fiscal year of the U.S. Borrower in which such date occurs, exceeds $5,000,000 for all such Asset Sales or Recovery Events, as the case may be, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds in excess of $5,000,000 shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.18(e); PROVIDED that notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $15,000,000, (ii) the aggregate Net Cash Proceeds of Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $15,000,000 and (iii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments and Canadian Swingline Commitment as set forth in Section 2.18(e). (d) Concurrently with the delivery of the financial statements referred to in Section 6.1(a) for each fiscal year of the U.S. Borrower, commencing with the fiscal year ending on or about February 28, 2003, the U.S. Borrower shall deliver to the U.S. Administrative Agent and each Lender a certificate executed by a Responsible Officer of the U.S. Borrower (iwhich may be included as part of the Compliance Certificate delivered pursuant to Section 6.2(b)(ii) in connection with the financial statements for such fiscal year) setting forth in reasonable detail the calculation of ~~this Section 2.11, if, for any~~ Excess Cash Flow ~~Period,~~ for such fiscal year. If there shall be Excess Cash ~~Flow, an amount equal to (i) the ECF Percentage~~ Flow for any such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4fiscal year, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the U.S. Borrower ~~Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date,~~ shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments and Canadian Swingline Commitment as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.18(e). Each such prepayment and commitment reduction shall be made on a date (an ~~“Excess Cash Flow Application Date”~~"EXCESS CASH FLOW APPLICATION DATE") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the U.S. Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ shall be applied, FIRST, to the prepayment of the Term Loans, SECOND, to reduce permanently the Revolving Commitments and, THIRD, to reduce permanently the Canadian Swingline Commitment. Except to the extent provided in the immediately succeeding sentence, prepayments of the Term Loans made pursuant to this Section shall be applied PRO RATA to the U.S. Tranche A Term Loans, the U.S. Tranche B Term Loans and the Canadian Term Loans and ratably to the respective remaining installments thereof, and reductions of the Revolving Commitments made pursuant to this Section shall be applied PRO RATA to the U.S. Revolving Commitments and the Canadian Revolving Commitments in effect at the time of such reduction. Any prepayments and Commitment reductions made pursuant to paragraph (c) of this Section, to the extent the assets that are the subject of any Asset Sale or Recovery Event are owned by the U.S. Borrower or any of its Subsidiaries (other than the Canadian Borrower or any of its Subsidiaries) shall be applied, FIRST, to the prepayment of the U.S. Term Loans (PRO RATA, to the U.S. Tranche A Term Loans and the U.S. Tranche B Term Loans and ratably to the respective remaining installments thereof), SECOND to the permanent reduction of the U.S. Revolving Commitment, THIRD, to the prepayment of the Canadian Term Loan (ratably to the remaining installments thereof), FOURTH, to the permanent reduction of the Canadian Revolving Commitment, and FIFTH, to the permanent reduction of the Canadian Swingline Commitment. Any prepayments and Commitment reductions made pursuant to paragraph (c) of this Section, to the extent the assets that are the subject of any Asset Sale or Recovery Event are owned by the Canadian Borrower or any of its Subsidiaries shall be applied, FIRST, to the prepayment of the Canadian Term Loan (ratably to the remaining installments thereof), SECOND, to the permanent reduction of the Canadian Revolving Commitment, THIRD, to the permanent reduction of the Canadian Swingline Commitment, FOURTH, to the prepayment of the U.S. Term Loans (PRO RATA, to the U.S. Tranche A Term Loans and the U.S. Tranche B Term Loans and ratably to the respective remaining installments thereof), and FIFTH, to the permanent reduction of the U.S. Revolving Commitment. (f) Notwithstanding anything to the contrary in Section 2.18(e) or 2.24, with respect to the amount of any mandatory prepayment described in Section 2.18 that is allocated to U.S. Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the relevant Borrower will, in lieu of applying such amount to the prepayment of U.S. Tranche B Term Loans as provided in paragraph (e) above, on the date specified in Section 2.18 for such prepayment, give the Administrative Agents telephonic notice (promptly confirmed in writing) requesting that the U.S. Administrative Agent prepare and provide to each U.S. Tranche B Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice, the U.S. Administrative Agent will send to each U.S. Tranche B Lender a Prepayment Option Notice, which shall be in the form of Exhibit G, and shall include an offer by the Borrowers to prepay on the date (each a "MANDATORY PREPAYMENT DATE") that is 10 Business Days after the date of the Prepayment Option Notice, the U.S. Tranche B Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount indicated in such Lender's Prepayment Option Notice. On the Mandatory Prepayment Date, (i) the Borrowers shall pay to the relevant U.S. Tranche B Lenders the aggregate amount necessary to prepay that portion of the outstanding U.S. Tranche B Term Loans in respect of which such Lenders have accepted prepayment as described above, and (ii) the Borrowers shall pay to the Tranche A Lenders an amount equal to 100% of the portion of the Tranche B Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans, PROVIDED, HOWEVER, that if such Tranche B Prepayment Amount arises from a mandatory prepayment from any Asset Sale or Recovery Event with respect to assets owned by (x) the U.S. Borrower or any of its Subsidiaries (other than the Canadian Borrower or any of its Subsidiaries), such amount shall be applied FIRST, to the prepayment of the U.S. Tranche A Term Loans and SECOND, to the prepayment of the Canadian Term Loans and (y) the Canadian Borrower or any of its Subsidiaries, such amount shall be applied FIRST, to the prepayment of the Canadian Term Loans and SECOND, to the prepayment of the U.S. Tranche A Term Loans. (g) Any reduction of the U.S. Revolving Commitments pursuant to this Section 2.18 shall be accompanied by prepayment of the U.S. Revolving Loans to the extent, if any, that the Total U.S. Revolving Extensions of Credit exceed the amount of the Total U.S. Revolving Commitments as so reduced, PROVIDED that if the aggregate principal amount of U.S. Revolving Loans then outstanding is less than the amount of such excess (because U.S. L/C 48 Obligations constitute a portion thereof), the U.S. Borrower shall, to the extent of the balance of such excess, replace outstanding U.S. Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with the U.S. Administrative Agent, for the benefit of the U.S. Lenders, on terms and conditions satisfactory to the U.S. Administrative Agent. Any reduction of the Canadian Revolving Commitments pursuant to this Section ~~2.17(b~~shall be accompanied by prepayment of the Canadian Revolving Loans to the extent, if any, that the Canadian Dollar Equivalent of the Total Canadian Revolving Loans exceed the amount of the Total Canadian Revolving Commitments as so reduced. Any reduction of the Canadian Swingline Commitment pursuant to this Section shall be accompanied by prepayment of the Canadian Swingline Loans to the extent, if any, that the aggregate then outstanding amount of the Canadian Swingline Extensions of Credit exceeds the amount of the Canadian Swingline Commitment as so reduced, PROVIDED that if the aggregate principal amount of Canadian Swingline Loans then outstanding is less than the amount of such excess (because Canadian L/C Obligations constitute a portion thereof), the Canadian Borrower shall, to the extent of the balance of such excess, replace outstanding Canadian Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Canadian Swingline Lender, on terms and conditions satisfactory to the Canadian Swingline Lender. The application of any prepayment ~~of Loans~~ pursuant to this Section ~~2.11~~ shall be ~~made on a pro rata basis regardless of Type~~made, FIRST, to ABR Loans, U.S. Base Rate Loans or C$ Prime Loans, as the case may be, and, SECOND, to Eurodollar Loans. Each prepayment of the Loans under this Section ~~2.11~~ (except in the case of Revolving Loans that are ABR Loans, U.S. Base Rate Loans ~~(to the extent all Revolving~~ or C$ Prime Loans ~~are not being prepaid)~~ and Canadian Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (International Multifoods Corp)

Mandatory Prepayments and Commitment Reductions. (ai) If any Indebtedness shall be issued or incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2(a) through (i) and (k)), ~~concurrently with~~and after giving effect to such issuance or incurrence on a Pro Forma Basis, ~~and as a condition~~ the Consolidated Senior Secured Leverage Ratio is greater than 3.0 to ~~closing of such transaction~~1.0, then an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause~~ Section 2.9(d). (gii) If any Indebtedness shall be issued or incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2(a) through (i) and (k)), and after giving to such issuance or incurrence on a Pro Forma Basis, the Consolidated Senior Secured Leverage Ratio is greater than 2.5 to 1.0 but not greater than 3.0 to 1.0, then an amount equal to 50% of ~~this~~ the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section ~~2.11~~2.9(d). (b) ~~Subject~~ If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to ~~clauses~~ the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(d). (dc) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 2011, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.9(d). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders (or such later date that is permitted by the Required Lenders~~. (c~~) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans in accordance with Section ~~2.17(b~~2.15(b) and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans then outstanding is less than the amount of such excess (because LC Exposure constitutes a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.9 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.9 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence prepaid and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (breakage payments to the extent ~~such Net Cash Proceeds or Excess Cash Flow would otherwise have been~~ required ~~to be applied if such Other Applicable Indebtedness was not then outstanding)~~by Section 2.18.

Appears in 1 contract

Sources: Credit Agreement (Blueknight Energy Partners, L.P.)

Mandatory Prepayments and Commitment Reductions. (a) If any Capital Stock or Indebtedness shall be issued or incurred by the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 or any Capital Stock issued by a Subsidiary to the Borrower or to another Subsidiary)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g~~Sections 2.11(d) ~~of this Section 2.11~~and 2.17(b). (b) ~~Subject to clauses~~ If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect of a Recovery Event, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Sections 2.11 (d) and ~~(i) of this Section 2.11~~2.17(b); provided, ifthat, ~~for any Excess Cash Flow Period, there shall be Excess Cash Flow~~on each Reinvestment Prepayment Date, an amount equal to ~~(i)~~ the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and~~ Reinvestment Prepayment Amount with respect to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount relevant Reinvestment Event shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in ~~clause~~ Sections 2.11(d) and 2.17(b). (gc) If, for any fiscal year of ~~this Section 2.11~~the Borrower commencing after the Closing Date, ~~provided that no such prepayment~~ there shall be ~~made if~~ Excess Domestic Cash Flow, the Borrower shall, on the relevant Excess Domestic Cash Flow Application Date, apply the Excess Cash Flow ~~for any~~ Percentage of such Excess Domestic Cash Flow ~~Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment~~toward the prepayment of the Term Loans as set forth in Sections 2.11(d) and 2.17(b). Each such prepayment shall be made on a date (an “Excess Domestic Cash Flow Application Date”) no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share application of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be ~~applied~~ made, first, to ~~the prepayment of the Term~~ Base Rate Loans ~~in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant~~ and, second, to ~~this Section 2.11 shall be made on a pro rata basis regardless of Type~~Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section 2.11 shall (~~except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid~~i) ~~and Swingline Loans) shall~~ be accompanied by accrued interest to the date of such prepayment on the amount prepaid. , (hii) ~~Notwithstanding any of the other provision of this Section 2.11, if~~ not be subject to any prepayment ~~of Eurocurrency Loans is required~~ penalties or premiums and (iii) be subject to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans owing pursuant to Section ~~2.11(b) and/or (c), and the amount of any~~ 2.20 in connection with such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)prepayment.

Appears in 1 contract

Sources: Credit Agreement (Inamed Corp)

Mandatory Prepayments and Commitment Reductions. (a) If for any reason the Total Revolving Extensions of Credit exceeds the lesser of (x) the Total Revolving Commitments then in effect and (y) the Maximum Permitted Outstanding Amount, the BorrowerBorrowers shall immediately, prepay the applicable Loans in an aggregate amount equal to such excess. (b) [Reserved] (c) [Reserved] (d) If any Indebtedness shall be incurred ~~by any Group Member (other than any Indebtedness permitted~~ pursuant to ~~be incurred by any such Person in accordance with~~ Section ~~7.2~~7.2(h)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be immediately applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11Loans. (e) In Any reduction of the ~~event~~ Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate ~~Outstanding Amount~~ principal amount of Revolving ~~Loans,~~ Loans then outstanding is less than the amount of such excess (because L/C Obligations ~~and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect~~constitute a portion thereof), the ~~Revolving Borrowers shall immediately (or~~BorrowerBorrowers shall, ~~if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit~~ to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the ~~Borrower Representative (~~balance of such excess, cash collateralize on ~~behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (~~or ~~such shorter time as the Administrative Agent shall reasonably agree)~~ prior to the date ~~such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender~~ of such ~~notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause~~ reduction (bin the manner described in Section 3.9) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date replace outstanding Letters of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b)Credit. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Revolving Loans under ~~this~~ Section ~~2.11~~ 2.6 (except in the case of Revolving Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) ~~Notwithstanding~~ At any time during the Suspension Period and upon the occurrence of any of the following events, the BorrowerBorrowers shall prepay the Revolving Loans at par plus accrued and unpaid interest, in each case, on a dollar-for-dollar basis within one Business Day of receipt of such Net Cash Proceeds, in an amount equal to: (i) 100% of the Net Cash Proceeds of (a) any Disposition of assets (other ~~provision~~ than from (I) casualty or condemnation events, (II) any intercompany transfers, provided proceeds from transfers of ~~this Section 2.11~~assets from Loan Parties to non-Loan Parties will not be so excluded, ~~if any prepayment~~ (III) other Dispositions of ~~Eurocurrency Loans is required~~ assets not to exceed $50,000,000 in the aggregate for all such Dispositions, (IV) dispositions of worn out, surplus or obsolete equipment in the ordinary course of business and (V) Dispositions of assets the proceeds of which are to be ~~made under this Section 2.11 other than on~~ applied to finance the ~~last day~~ acquisition of assets in respect of which the obligation to make such acquisition was incurred prior to the commencement of the ~~Interest~~ Suspension Period ~~applicable thereto~~(and was not incurred in contemplation thereof)) by the Parent Borrower or any of its Subsidiaries (or, in the case of any non-Wholly-Owned Subsidiary of the Parent Borrower, the applicable parent’s allocable share of such proceeds) and (b) any Designated Asset Sales. (ii) 100% of the Net Cash Proceeds of incurrences of Indebtedness of the Parent Borrower ~~may~~or its Subsidiaries other than (i) any intercompany Indebtedness of the Parent Borrower or any of its Subsidiaries, (ii) any re-financing of existing Indebtedness not increasing the existing amount (or commitments, if applicable) thereof in ~~its sole discretion~~excess of the principal amount of the Indebtedness being refinanced, ~~deposit~~ plus accrued interest, fees, premiums and refinancing expenses, (iii) Subscription Line Indebtedness, (iv) Indebtedness incurred pursuant to debt facility commitments in existence prior to the commencement of the Suspension Period (and not incurred in contemplation thereof) and any replacement or refinancing thereof not increasing the amount (or amount of ~~any such prepayment otherwise required~~ commitments, as applicable) thereof and (v) Indebtedness to ~~be made thereunder with~~ finance the ~~Administrative Agent, to be held as security for~~ acquisition of assets in respect of which the ~~obligations of the applicable Borrower~~ obligation to make such ~~prepayment~~ acquisition was incurred prior to the commencement of the Suspension Period (and was not incurred in contemplation thereof). (iii) 100% of the Net Cash Proceeds from the issuance of any Capital Stock by the REIT Entity (other than (A) issuances and settlements pursuant to ~~a cash collateral agreement~~ employee stock plans or other benefit or employee incentive arrangements, (B) issuances of shares of capital stock or rights to ~~be entered into on terms reasonably satisfactory to~~ Wholly-Owned Subsidiaries of the ~~Administrative Agent until~~ Parent Borrower, (C) issuances of shares of Capital Stock in connection with the ~~last day~~ conversion of convertible shares or units of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined party outstanding as of the date ~~such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest~~ hereof or otherwise issued in ~~accordance~~ compliance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party5.01(c) ~~to apply such amount to the prepayment~~ of the ~~applicable Eurocurrency Loans in accordance with this Section 2.11~~ Merger Agreement and (~~determined as~~ D) issuances to finance the acquisition of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment assets in respect of which the obligation to make such ~~Asset Sale, Recovery Event or Excess Cash Flow is required under~~ acquisition was incurred prior to the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis commencement of the ~~aggregate Outstanding Amount of Term Loans~~ Suspension Period (and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not ~~then outstanding~~incurred in contemplation thereof)).

Appears in 1 contract

Sources: Credit Agreement (Colony NorthStar, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the Required Prepayment Lenders shall otherwise agree and without prejudice to Section 7.2, if any Indebtedness ~~shall be~~ is incurred after the date hereof by Holdings, the Borrower or any ~~Group Member~~ of its Subsidiaries (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.12(d). (b) ~~Subject~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof within five Business Days thereafter, 100% of such Net Cash Proceeds shall be applied on such fifth Business Day toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales (other than Asset Sales in connection with the Ripon Transition) that may be excluded from the foregoing requirement pursuant to ~~clauses~~ a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower, (dii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.12(d) and (iiii) for purposes of this Section ~~2.11~~2.12(b), the Net Cash Proceeds of any Asset Sale pursuant to Section 7.5(k) shall be equal to the lesser of (A) the amount of such Net Cash Proceeds and (B) the aggregate amount of Investments made by Holdings, the Borrower or any of their respective Subsidiaries in the relevant Foreign Subsidiary after the Effective Date and, in no event, shall the Net Cash Proceeds of all Asset Sales in respect of the Capital Stock of any Foreign Subsidiary for purposes of this Section 2.12(b) exceed the aggregate amount of Investments made by Holdings, the Borrower and their respective Subsidiaries in such Foreign Subsidiary after the Effective Date. (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year in which the Effective Date occurs, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.12(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than 10 five Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) ~~Notwithstanding anything~~ Subject to ~~the contrary in this Agreement (including clauses (b) and (c) above)~~Section 2.18, to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to this Section ~~2.11~~ shall be ~~applied~~ applied, first, to the prepayment of the Term Loans ~~in accordance with Section 2.17(b)~~and, second, to reduce permanently the Revolving Credit Commitments. ~~The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment~~ Any such reduction of the ~~Loans under this Section 2.11 (except in the case of~~ Revolving ~~Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ Credit Commitments shall be accompanied by ~~accrued interest~~ prepayment of the Revolving Credit Loans and/or Swing Line Loans to the ~~date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11~~extent, if ~~any prepayment~~ any, that the Total Revolving Extensions of ~~Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ Credit exceed the amount of ~~any such prepayment otherwise required to be made thereunder with~~ the ~~Administrative Agent~~Total Revolving Credit Commitments as so reduced, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that ~~such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon~~ if the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the aggregate principal amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)Revolving Credit

Appears in 1 contract

Sources: Credit Agreement (Alliance Laundry Corp)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness permitted ~~to be incurred by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Term Loan Refinancing Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans as set forth in ~~clause (g) of~~ Section 2.11(e); provided that prepayments pursuant to this Section ~~2.11~~2.11(a) shall be accompanied by any fees payable with respect thereto pursuant to Section 2.10(b). (b) ~~Subject~~ If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, the Asset Sale Percentage of such Net Cash Proceeds shall be applied within 10 Business Days after such date toward the prepayment of the Term Loans as set forth in Section 2.11(e); provided, that, notwithstanding the foregoing, no such prepayment shall be required to ~~clauses~~ the extent that the aggregate Net Cash Proceeds received from Asset Sales or Recovery Events in any fiscal year is less than $50,000,000 (dit being understood that only amounts in excess of such thresholds shall be required to be applied to any prepayment); provided further that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.11(e); provided further that, notwithstanding the foregoing, such Net Cash Proceeds may be applied towards the prepayment or purchase of Pari Passu Secured Indebtedness to the extent the documentation governing such Indebtedness requires such a prepayment or purchase with Net Cash Proceeds from any Asset Sale or 56 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.2 (c) ~~and (i) of this Section 2.11, if~~If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply toward the prepayment of the Term Loans as set forth in ~~clause~~ Section 2.11(e) the excess of (gx) the ECF Percentage of ~~this Section 2.11, provided that no~~ such ~~prepayment shall be made if the~~ Excess Cash Flow ~~for~~ over (y) solely to the extent not funded with the proceeds of long-term Indebtedness or the proceeds of any issuance of Capital Stock, the aggregate amount of (1) all optional prepayments of Term Loans made during such Excess Cash Flow Period ~~is less than $10,000,000~~ pursuant to Section 2.10, (~~and, if~~ 2) all optional prepayments of Pari Passu Secured Indebtedness made during such Excess Cash Flow ~~exceeds~~ Period, (3) all prepayments of ABL Loans during such ~~amount~~Excess Cash Flow Period to the extent accompanied by a permanent reduction of the ABL Commitments, ~~only~~ and (4) all Loan purchases made during such ~~excess~~ Excess Cash Flow Period pursuant to Section 2.25 and Section 10.6(e) (provided that the aggregate amount of any such purchase shall be ~~subject to prepayment~~the amount of the Borrower’s cash payment in respect of such purchase). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the ~~fiscal year~~ Excess Cash Flow Period with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)financial statements are actually delivered. (d) ~~Notwithstanding anything to~~ On or after the ~~contrary~~ fifth anniversary of the Closing Date, the Borrower shall pay in ~~this Agreement~~ cash all accrued interest and/or original issue discount (~~including clauses (b~~as determined for U.S. federal income tax purposes) ~~and (c) above),~~ to the extent necessary so that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected Initial Term Loans will not be ~~required to be applied to repay Loans at~~ classified as “applicable high yield discount obligations” under Section 163(i) of the ~~times set forth in this Section 2.11 but may be retained by~~ Code (or any successor provision). It is the ~~applicable Subsidiary or branch (~~intent of the ~~Borrowers hereby agreeing to cause~~ Borrower that payments on the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Initial Term Loans made pursuant to this Section ~~2.11~~2.11(d) be made such that Section 163(e)(5) of the Code (or any successor provision) would not apply to the Initial Term Loans and the provisions of this Agreement related to the Initial Term Loans shall be applied consistently therewith. The computations and determinations made by the Borrower for purposes of this Section 2.11(d) shall be binding upon each Lender. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment ~~of Loans~~ pursuant to this Section 2.11 shall be made ~~on a pro rata basis regardless of Type~~first, to ABR Loans and, second, to Eurodollar to RFR Loans, and, third, to Term Benchmark Loans. Each prepayment of the Loans under this Section 2.11 ~~(except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) ~~Notwithstanding~~ With respect to any ~~of the other provision of~~ prepayment pursuant to this Section ~~2.11~~2.11 of Initial Term Loans and, if unless otherwise specified in the applicable Incremental Term Loan Activation Notice, other Term Loans, any Term Lender, at its option, may elect not to accept such prepayment. The Borrower shall notify the Administrative Agent of any event giving rise to a prepayment ~~of Eurocurrency Loans is required to be made~~ under this Section 2.11 ~~other than on~~ at least three Business Days prior to the ~~last day~~ date of such prepayment. Each such notice shall specify the ~~Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ date of such prepayment and provide a reasonably detailed calculation of the amount of ~~any~~ such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized 57 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.2 (~~without any further action by or notice to or from any Borrower or~~ g) Notwithstanding any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary, the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary or Excess Cash Flow attributable to Foreign Subsidiaries, are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the ~~Borrower Representative’s option, outstanding Indebtedness that is secured~~ times provided in this Section 2.11 but may be retained by the ~~Collateral~~ applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five Business Days after such repatriation) applied (in the case of Excess Cash Flow, net of additional taxes payable or reasonably estimated to be payable as a ~~pari passu basis (determined without regard~~ result thereof) to the ~~control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory~~ prepayment of the Term Loans pursuant to this Section ~~2.11(b) and/or~~ 2.11 (~~c), and the amount of any~~ provided that no such prepayment ~~required~~ of the Term Loans pursuant to ~~be made hereunder~~ this Section 2.11 shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the ~~holders~~ case of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash ~~Flow~~Flow the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the ~~declined~~ Borrower applies an amount equal to the amount of such Net Cash Proceeds or Excess Cash Flow ~~shall promptly (and, in any event, within 10 Business Days after the date of~~ to such ~~rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent~~ reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the Borrower rather than such Foreign Subsidiary, less (in the case of Excess Cash Flow) the amount of additional taxes that would ~~otherwise~~ have been ~~required to be applied~~ payable or reserved against if such ~~Other Applicable Indebtedness was not then outstanding~~Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary).

Appears in 1 contract

Sources: Term Loan Credit Agreement (Upbound Group, Inc.)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (other than ~~any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2~~Excluded Indebtedness)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g); provided that (i) to the extent that the Consolidated Leverage Ratio as of the date of incurrence of Indebtedness pursuant to clause (gxv) of Section 8.2(a), calculated on a pro forma basis after giving effect to the incurrence of such Indebtedness (and any required repayments hereunder), is greater than or equal to 4.0 to 1.0 but less than 5.0 to 1.0, in each case after giving effect thereto, only 75% of the Net Cash Proceeds of such Indebtedness shall be applied on the date of such incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g) and (ii) to the extent that the Consolidated Leverage Ratio as of the date of incurrence of Indebtedness pursuant to clause (xv) of Section 8.2(a), calculated on a pro forma basis after giving effect to the incurrence of such Indebtedness (and any required repayments hereunder), is less than 4.0 to 1.0 after giving effect thereto, no prepayment of Term Loans or reduction of Revolving Commitments shall be required pursuant to this ~~Section 2.11~~Section. (b) ~~Subject~~ If any Capital Stock shall be issued or sold by any Group Member (other than issuances of Capital Stock to ~~clauses~~ Holdings or any Group Member), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or sale toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g); provided that to the extent that the Consolidated Leverage Ratio as of the date of such issuance or sale of Capital Stock, calculated on a pro forma basis after giving effect to the such issuance or sale (and any required repayments hereunder), is less than 4.5 to 1.0 after giving effect thereto, no prepayment of Term Loans or reduction of Revolving Commitments shall be required pursuant to this Section. (c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g); provided, that (i) notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 4.2(g) and (ii) the Borrower shall use the Net Cash Proceeds of any Disposition to prepay Term Loans and reduce the Revolving Commitments as set forth in Section 4.2(g) to the extent necessary to avoid having to prepay or to offer to prepay any of the Notes, any Additional Senior Subordinated Debt or any Additional Senior Unsecured Notes. (d) ~~and (i) of this Section 2.11, if~~If, for any ~~Excess Cash Flow Period,~~ fiscal year of the Borrower there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in ~~clause (g)~~ Section 4.2(g); provided that the amount of any prepayment of Term Loans and reduction of Revolving Commitments required pursuant to this Section ~~2.11, provided that no such prepayment~~ 4.2(d) shall be reduced by the amount of any optional prepayments of Term Loans and optional prepayments of Revolving Loans and Swingline Loans to the extent accompanying permanent optional reductions of Revolving Commitments, in each case to the extent such prepayments are made if during the ~~Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment)~~relevant fiscal year. Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section ~~6.1(a~~7.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) financial statements are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11actually delivered. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess.[Reserved] (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment.[Reserved] (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~applied~~ applied, first, to prepay the Term Loans and, second, to reduce permanently the Revolving Commitments. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the ~~Term~~ Revolving Loans and/or Swingline Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ pursuant to ~~this~~ Section ~~2.11~~ 4.2 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Base Rate Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 4.2 (except in the case of Revolving Loans that are ~~ABR~~ Base Rate Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding ~~any of~~ anything to the ~~other provision of this~~ contrary in Section ~~2.11~~4.2(g) or 4.8, ~~if any prepayment of Eurocurrency Loans is required~~ with respect to ~~be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ the amount of any mandatory prepayment described in Section 4.2 that is allocated to Tranche D Term Loans or Tranche D-1 Term Loans (such ~~prepayment otherwise required to be made thereunder with~~ amounts, the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period"Tranche D Prepayment Amount"), at ~~which~~ any time when Tranche A-2 Term Loans or Tranche A-3 Term Loans remain outstanding, the ~~Administrative Agent shall be authorized (without any further action by or notice to or from any~~ Borrower ~~or any other Loan Party) to apply~~ will, in lieu of applying such amount to the prepayment of ~~such Eurocurrency~~ Tranche D Term Loans or Tranche D-1 Term Loans, as applicable, as provided in ~~accordance with this Section 2.11~~ paragraph (~~determined as of~~ g) above, on the date specified in Section 4.2 for such ~~prepayment was required~~ prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to ~~be originally made); provided that~~ each Tranche D Term Lender and ▇▇▇▇▇▇▇ ▇-▇ Term Lender, as applicable, a Prepayment Option Notice. As promptly as practicable after receiving such ~~unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon~~ notice from the ~~occurrence and during the continuance of any Event of Default~~Borrower, the Administrative Agent will send to each Tranche D Term Lender and ▇▇▇▇▇▇▇ ▇-▇ Term Lender, as applicable, a Prepayment Option Notice and shall ~~also be authorized (without any further action~~ include an offer by ~~or notice~~ the Borrower to ~~or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of~~ prepay on the date ~~such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause~~ (heach a "Mandatory Prepayment Date") pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 4 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such ~~rejection~~Lender by an amount equal to the portion of the Tranche D Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche D Term Loans or Tranche D-1 Term Loans, as applicable. Any Tranche D Term Lender or ▇▇▇▇▇▇▇ ▇-▇ Term Lender which wishes to accept any or all of the prepayment applicable to its Tranche D Term Loans or Tranche D-1 Term Loans, as applicable, shall be required to execute and return the Prepayment Option Notice to the Administrative Agent no later than 5:00 P.M., New York City time, on the date that is 3 Business Days after the date of the Prepayment Option Notice. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the relevant Tranche D Term Lenders and ▇▇▇▇▇▇▇ ▇-▇ Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which such Lenders have accepted prepayment as described above, (ii) the Tranche A-2 Term Loans and Tranche A-3 Term Loans shall be prepaid in an aggregate amount equal to the portion of the Tranche D Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to ~~prepay~~ the prepayment of the Tranche A-2 Term Loans ~~in accordance with the terms hereof (~~and Tranche A-3 Term Loans to the extent ~~such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)~~so required.

Appears in 1 contract

Sources: Credit Agreement (Donnelley R H Inc)

Mandatory Prepayments and Commitment Reductions. (a) If after the Closing Date any Capital Stock shall be sold or issued by Holdings, the Company or any of its Subsidiaries (including, without limitation, any sales pursuant to the exercise of warrants, but excluding (i) any issuance of common stock in payment of interest under the Seller Note, (ii) any Permitted Employee Stock Issuances, to the extent the proceeds of such Permitted Employee Stock Issuances are contributed by Holdings to the Company and (iii) the issuance of common stock of Holdings as a part of the consideration for the Exchange Offer and the Merger), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied within three Business Days after the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans and Acceptances and the reduction of the Revolving Credit Commitments as set forth in Section 6.3(e). (b) If after the Closing Date any Indebtedness shall be issued or incurred by Holdings, the Company or any ~~Group Member~~ of its Subsidiaries (excluding any Indebtedness (other than ~~any~~ Indebtedness ~~permitted to be~~ evidenced by High Yield Notes) incurred ~~by any such Person~~ in accordance with Section ~~7.2~~10.2 as in effect on the date of this Agreement)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on within three Business Days after the date of such issuance or incurrence toward the prepayment of the Term Loans and the Acceptances and the reduction of the Revolving Credit Commitments (or, if required by Section 6.3(e), reduction of the Tranche B-1 Term Loan Commitments and the Tranche C-1 Term Loan Commitments) as set forth in ~~clause (g) of this~~ Section ~~2.11~~6.3(e). (bc) ~~Subject to~~ If after the Closing Date the Company or any of its Subsidiaries (other than the Canadian Borrower or any of its Subsidiaries) shall receive Net Cash Proceeds from any Asset Sale (including, without limitation, any Net Cash Proceeds from any Dispositions permitted by clauses (de) and (f) of Section 10.6 to the extent such proceeds exceed $225,000,000 in the aggregate) or Recovery Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the U.S. Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 6.3(f). If after the Closing Date the Canadian Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Total Aggregate Canadian Term Loan Outstandings and the permanent reduction of the Canadian Facility Maximum Amount as set forth in Section 6.3(g). Notwithstanding the foregoing, (i) no such prepayment or reduction shall be required in respect of Asset Sales for which the Net Cash Proceeds in any fiscal year aggregate up to (but do not exceed) $5,000,000 (in the aggregate for the Company and its Subsidiaries, including the Canadian Borrower and its Subsidiaries) and (ii) no such prepayment or reduction shall be required in respect of any Asset Sales or any Recovery Event if the Company delivers a Reinvestment Notice in respect of each such Asset Sale and Recovery Event; provided, that, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayments and reductions required by Section 6.3(f) or 6.3(g), as applicable; and provided, further, that no Reinvestment Notice shall be required in respect of Asset Sales for which no prepayment is required pursuant to the foregoing clause (i) of this ~~Section 2.11, if~~sentence. (d) If, for any fiscal year of Holdings commencing with the fiscal year ending August 31, 1999, Holdings shall have Excess Cash Flow ~~Period, there shall be Excess Cash Flow, an amount equal to~~ (i) calculated without taking into account the ~~ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the~~ Canadian Borrower ~~Representative~~ and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4its Subsidiaries), the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, Company shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply 75% of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g)~~ Section 6.3(f). If, for any fiscal year of ~~this Section 2.11~~the Canadian Borrower commencing with the fiscal year ending August 31, ~~provided that no such prepayment~~ 1999, the Canadian Borrower shall ~~be made if~~ have Excess Cash Flow, the Canadian Borrower shall, on the relevant Excess Cash Flow ~~for any~~ Application Date, apply 75% of such Excess Cash Flow ~~Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment~~toward the prepayment of the Total Aggregate Canadian Term Loan Outstandings and the permanent reduction of the Canadian Facility Maximum Amount as set forth in Section 6.3(g). Each such prepayment and reduction shall be made on a date (an “"Excess Cash Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the date on which the financial statements of ~~UK Holdco~~ Holdings referred to in Section ~~6.1(a~~9.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to all other Net Cash Proceeds not excluded pursuant to~~ the ~~preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all~~ date such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding financial statements are actually delivered. Notwithstanding the foregoing, ~~on each Reinvestment Prepayment Date, an amount equal to~~ if for any fiscal year the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow ~~attributable to Subsidiaries (or branches~~ of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties one of the ~~relevant directors~~Canadian Borrower or Holdings (calculated without taking into account the Canadian Borrower and its Subsidiaries), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, is a negative number, and the Excess Cash Flow of the other such ~~distribution will be promptly effected~~ Person is a positive number, the amount of the prepayment and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to reduction required by this Section ~~2.11~~6.3(d) in respect of the Company (if Holdings is the Person having positive Excess Cash Flow) or the Canadian Borrower (if the Canadian Borrower is the Person having positive Excess Cash Flow) for such fiscal year shall be reduced by the amount of the negative Excess Cash Flow of the other such Person for such fiscal year. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments and Commitment reductions made pursuant to ~~this~~ Section ~~2.11~~ 6.3(a) or 6.3(b) shall be ~~applied~~ applied, first, to the prepayment of the U.S. Term Loans and Total Aggregate Canadian Term Loan Outstandings, ratably in accordance with the outstanding amount of each Facility and, second, to reduce permanently the Revolving Credit Commitments. Notwithstanding the preceding sentence, any prepayment made pursuant to Section ~~2.17(b~~6.3(b) with the Net Cash Proceeds of the High Yield Offering shall be applied, first, to prepay the Tranche B-1 Term Loans and the Tranche C-1 Term Loans, ratably in accordance with the outstanding amounts thereof (or, if the High Yield Offering is consummated prior to the Merger Date, such amount shall be applied to permanently reduce the Tranche B-1 Term Loan Commitments and the Tranche C-1 Term Loan Commitments) and, second, in accordance with the preceding sentence. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the aggregate Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Company shall not be required to reduce any outstanding Letters of Credit. The application of any such prepayment of U.S. Term Loans ~~pursuant to this Section 2.11~~ shall be made first to Base Rate Loans and second to LIBOR Loans. The application of any such prepayment to Total Aggregate Canadian Term Loan Outstandings shall be made first to Canadian Term Loans and second (but only on ~~a pro rata basis regardless of Type~~the maturity date thereof) to Acceptances. Each such prepayment of the Loans ~~under this Section 2.11~~ (except in the case of Revolving Credit Loans that are ~~ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hf) ~~Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required~~ Amounts to be applied in connection with prepayments and reductions made ~~under this~~ pursuant to Section ~~2.11 other than on the last day of the Interest Period applicable thereto~~6.2(c), the ~~applicable Borrower may, in its sole discretion, deposit~~ first sentence of Section 6.3(c) or the ~~amount~~ first sentence of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent Section 6.3(d) shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Defaultapplied, ~~the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount~~ first, to the prepayment of the ~~applicable Eurocurrency Loans~~ U.S. Term Loans, ratably in accordance with ~~this Section 2.11 (determined as~~ the respective outstanding amounts of the ~~date~~ Facilities, and, second, to reduce permanently the Revolving Credit Commitments. Any such reduction of the Revolving Credit Commitments shall be accompanied by prepayment of the Revolving Credit Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the aggregate Revolving Credit Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Company shall not be required to reduce any outstanding Letters of Credit. The application of any such prepayment ~~was required~~ of U.S. Term Loans shall be made first to Base Rate Loans and second to LIBOR Loans. Each such prepayment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (g) Amounts to be ~~originally made~~applied in connection with prepayments and reductions made pursuant to Section 6.2(c)~~. Notwithstanding anything~~ , the second sentence of Section 6.3(c) or the second sentence of Section 6.3(d) shall be applied to the ~~contrary contained~~ reduction of the Total Aggregate Canadian Term Loan Outstandings and the simultaneous and automatic reduction in ~~this Agreement~~an equal amount of the Canadian Facility Maximum Amount. The application of any such prepayment to Total Aggregate Canadian Term Loan Outstandings shall be made first to Canadian Term Loans and second (but only on the maturity date thereof) to Acceptances. Each such prepayment of the Canadian Term Loans shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) The amount of each prepayment of the Tranche A Term Loans, ~~any amounts held by~~ Tranche B Term Loans, Tranche C Term Loans or Canadian Term Loans, as the ~~Administrative Agent~~ case may be, required pursuant to this ~~clause (h) pending application to any Eurocurrency Loans~~ Section 6.3 shall be ~~held and~~ applied to reduce the ~~satisfaction~~ then remaining installments of the Term Loans under the relevant Facility, pro rata based upon the then remaining outstanding principal amount of such ~~Eurocurrency Loans prior to any other application of such property as may be provided for herein~~installments. (i) Notwithstanding ~~the foregoing provisions of this~~ anything in Section ~~2.11~~6.2(a), ~~at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard~~ Section 6.3(e) or Section 6.3(f) to the ~~control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the~~ contrary and provided that there are Tranche A Term Loans ~~pursuant~~ and/or Total Aggregate Canadian Term Loan Outstandings then outstanding, with respect to ~~Section 2.11(b) and/or (c), and~~ the amount of any ~~such~~ optional prepayment ~~required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds~~ described in Section 6.2(a) or ~~Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a~~ mandatory prepayment described in ~~respect of such Asset Sale, Recovery Event or Excess Cash Flow~~ Section 6.3 that is ~~required under~~ allocated to the ~~terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding~~ Tranche B Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of or Tranche C Term Loans ~~and Other Applicable Indebtedness at~~ (such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)amounts,

Appears in 1 contract

Sources: Credit Agreement (Laidlaw Environmental Services Inc)

Mandatory Prepayments and Commitment Reductions. (a) If Unless the ----------------------------------------------- Required Prepayment Lenders shall otherwise agree, if any Capital Stock or Indebtedness shall be ~~incurred~~ issued or Incurred by Holdings or any ~~Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing~~ of ~~such transaction~~its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or ~~incurrence~~ Incurrence toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of~~ Section 2.11(d); provided that no such prepayment and reduction shall -------- be required pursuant to this Section ~~2.11~~2.11(a) with respect to (i) Designated Equity Amounts, (ii) any such Net Cash Proceeds from the issuance of Capital Stock which is applied within five Business Days after the receipt thereof by the Company and its Subsidiaries to repay Indebtedness Incurred in reliance upon the provisions of Section 7.2(i) or (j) hereof, (iii) other than to the extent set forth therein, Indebtedness Incurred in accordance with Section 7.2 and (iv) up to $10,000,000 in aggregate Net Cash Proceeds from the issuance of Capital Stock by Holdings after the Closing Date. (b) ~~Subject to clauses (d)~~ Unless the Required Prepayment Lenders shall otherwise agree, if on any date Holdings or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section 2.11(d); provided, --------- that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of ~~this~~ Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $2,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in Section ~~2.11~~2.11(d). (c) Unless the Required Prepayment Lenders shall otherwise agree, if, for any ~~Excess Cash Flow Period~~fiscal year of the Borrower commencing with the fiscal year ending December 31, 1998, there shall be Excess Cash Flow, ~~an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of~~ the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, ~~be applied~~ apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and the reduction of the Revolving Credit Commitments as set forth in ~~clause (g) of this~~ Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment2.11(d). Each such prepayment and commitment reduction shall be made on a date (an “"Excess Cash ----------- Flow Application Date”") no later than ~~10 Business Days~~ five days after the earlier of (i) the ---------------------- date on which the financial statements of ~~UK Holdco~~ the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions Lenders and (ii) ~~with respect to~~ the date such financial statements are actually delivered. representations and warranties contained in the Transaction Agreement are true and correct in all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect material respects. There is no fact known to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent Loan Party that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would could reasonably be expected to ~~result~~ have a Material Adverse Effect that has not been expressly disclosed herein, in ~~material adverse Tax consequences~~the other Loan Documents, in the ~~portion of such Net Cash Proceeds~~ Confidential Information Memorandum or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loansother documents, ~~L/C Obligations~~ certificates and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) statements furnished to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied Lenders for use in connection with ~~any mandatory prepayments made pursuant to this Section 2.11 shall be applied to~~ the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) transactions contemplated hereby and ~~Swingline Loans) shall be accompanied~~ by ~~accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of~~ the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereinDocuments. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Details Inc)

Mandatory Prepayments and Commitment Reductions. (a) If on any ~~Indebtedness shall be incurred by~~ date any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale (other than a sale of Capital Stock of ACEP) or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding Term~~ toward the prepayment of the Loans as set forth in ~~accordance with this~~ Section ~~2.11~~3.2(b); ~~provided~~ provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of ACEP and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding Term~~ prepayment of the Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences3.2(b); provided, that ~~for~~ any such prepayment shall not constitute a ~~period~~ reduction of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11Commitments. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (fb) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share application of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 3.2 shall be ~~applied~~ made, first, to ~~the prepayment of the Term~~ Base Rate Loans ~~in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant~~ and, second, to ~~this Section 2.11 shall be made on a pro rata basis regardless of Type~~Eurodollar Loans. Each prepayment of the Loans under ~~this~~ Section ~~2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans)~~ 3.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (hc) ~~Notwithstanding any~~ Any reduction of the ~~other provision~~ Commitments shall be accompanied by prepayment of ~~this Section 2.11~~the Loans to the extent, if ~~any prepayment~~ any, that the Total Extensions of ~~Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit~~ Credit exceed the amount of ~~any~~ the Total Commitments as so reduced, provided that if the aggregate principal amount of Loans then outstanding is less than the amount of such ~~prepayment otherwise required~~ excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to ~~be made thereunder~~ the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative ~~Agent, to be held as security~~ Agent for the ~~obligations~~ benefit of the ~~applicable Borrower~~ Lenders in an amount equal to ~~make~~ 105% of such ~~prepayment pursuant to a cash collateral agreement to be entered into~~ balance of such excess and otherwise on terms ~~reasonably~~ and conditions satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for hereinAgent. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Stratosphere Leasing, LLC)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (~~other than~~ excluding any Indebtedness ~~permitted to be~~ incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.1)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such ~~issuance or~~ incurrence toward the ~~prepayment~~ reduction of the ~~Term Loans~~ Commitments as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.6(c). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any ~~Restricted Subsidiary~~ Group Member shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless ~~the Borrower Representative has determined in good faith that such Net Cash Proceeds~~ a Reinvestment Notice shall be ~~reinvested~~ delivered in ~~its business (a “Reinvestment Event”)~~respect thereof, ~~an aggregate amount equal to 100% of~~ such Net Cash Proceeds shall be applied ~~within five Business Days of~~ on such date ~~to prepay outstanding Term Loans~~ toward the reduction of the Commitments as set forth in ~~accordance with this~~ Section ~~2.11~~2.6(c); ~~provided~~ provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding Term Loans~~ reduction of the Commitments as set forth in Section ~~2.11(g~~2.6(c). (~~d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (~~c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to ~~this~~ Section ~~2.11~~ 2.6 and Commitment reductions made pursuant to Section 2.6 shall be applied to reduce permanently the applicable Commitments. Any such reduction of the Commitments shall be accompanied by prepayment of the ~~Term~~ Loans to the extent, if any, that the (i) Last Out Tranche Extensions of Credit exceed the amount of the Last Out Tranche Commitments as so reduced or (ii) First Out Tranche Extensions of Credit exceed the amount of the First Out Tranche Commitments as so reduced, provided that if the aggregate principal amount of Loans then outstanding is less than the amount of any such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in ~~accordance~~ cash in a cash collateral account established with ~~Section 2.17(b)~~the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment ~~of Loans~~ made pursuant to ~~this~~ Section ~~2.11~~ 2.6 and Commitment reductions pursuant to Section 2.6 shall be ~~made on a pro rata basis regardless of Type~~made, first, to Last Out Tranche Loans and Last Out Tranche Commitments and, second, to First Out Tranche Loans and First Out Tranche Commitments. Each prepayment of the Loans under ~~this~~ Section ~~2.11~~ 2.6 (except in the case of ~~Revolving~~ Loans that are ABR ~~Loans (to the extent all Revolving Loans are not being prepaid) and Swingline~~ Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Credit Agreement (Sunpower Corp)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary ~~in this Agreement~~ provided herein, Borrower shall be entitled to take possession of six (~~including clauses (b~~6) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch TE Lanes (the ~~Borrowers hereby agreeing to cause the applicable Subsidiary~~ "Six TE Lanes") from any source for installation by Borrower in one or ~~branch to promptly take commercially reasonable actions to permit~~ more new Parks, and Foothill shall release such ~~repatriation~~ Six TE Lanes from all liens in favor of Foothill without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable requiring Borrower to make any mandatory prepayment to reduce the outstanding principal balance of the Loan Account and the Obligations under the Loan Agreement, or to make a payment of any other fee or expense to Foothill. Thereafter, if Borrower desires to install one or more additional TE Lanes (the "Additional TE Lanes") in one or more Parks, Borrower may obtain a release of the lien held by Foothill on such Additional TE Lanes by making a mandatory prepayment ~~pursuant~~ of $100,000 to ~~a cash collateral agreement~~ Foothill with respect to each Additional ▇▇ ▇▇▇▇ to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made)released. Notwithstanding anything to the contrary ~~contained in this Agreement~~provided herein, upon the sale of any ~~amounts held~~ ▇▇ ▇▇▇▇ by ~~the Administrative Agent pursuant to this clause (h) pending application~~ Borrower to any ~~Eurocurrency Loans~~ third party, Borrower shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which make a mandatory prepayment in ~~respect~~ the Required Amount, if any, set forth in Schedule A, and Foothill shall upon receipt of such ~~Asset Sale~~mandatory prepayment release its lien on such ▇▇ ▇▇▇▇. (b) Notwithstanding anything to the contrary provided herein, ~~Recovery~~ upon the consummation of a Release Transaction, no mandatory payment to Foothill or other payment to reduce the outstanding principal balance on the Obligations or the Loan Account shall be required hereunder, and provided no Event ~~or Excess Cash Flow~~ of Default shall then exist, Foothill shall release its liens on the Real Property that is ~~required under~~ the ~~terms~~ subject of the Release Transaction within five (5) Business Days after receipt of Borrower's request for such ~~Other Applicable Indebtedness~~ release. Borrower shall be entitled to one hundred percent (~~with any remaining~~ 100%) of the Net Cash Proceeds ~~or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with~~ from the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)Release Transactions.

Appears in 1 contract

Sources: Loan and Security Agreement (Malibu Entertainment Worldwide Inc)

Mandatory Prepayments and Commitment Reductions. (a) If any ~~Indebtedness~~ Redeemable Preferred Interests or Debt shall be issued or incurred by any ~~Group Member~~ Restricted Company (~~other than~~ excluding any ~~Indebtedness permitted to be~~ Debt or Redeemable Preferred Interests incurred ~~by any such Person~~ in accordance with Section ~~7.2~~7.2 (other than Credit Agreement Refinancing Debt) or Capital Stock issued in compliance with Section 7)~~, concurrently with, and as a condition to closing of such transaction~~, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied ~~on the date~~ within five Business Days of such issuance or incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in ~~clause (g) of this~~ Section ~~2.11~~2.11(d). (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, If on any ~~date, UK Holdco or~~ date any Restricted ~~Subsidiary~~ Company shall receive Net Cash Proceeds from any Asset Sale or ~~any~~ Recovery Event ~~in excess of (i) the greater of $2,000,000~~ and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in are not prohibited under any ~~fiscal year,~~ Requirements of Law to be distributed or otherwise transferred without the consent or approval of a Governmental Authority then, ~~unless~~ to the ~~Borrower Representative has determined~~ extent a Reinvestment Notice shall not have been delivered in ~~good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”)~~respect thereof, an ~~aggregate~~ amount equal to ~~100% of~~ such Net Cash Proceeds shall be applied within ~~five~~ ten Business Days after the date that all post-closing adjustments associated therewith have been completed toward the prepayment of ~~such date to prepay outstanding~~ the Term Loans and the Revolving Loans as set forth in ~~accordance with this~~ Section ~~2.11~~2.11(d); provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to ~~any Asset Sale or Recovery Event,~~ the relevant Reinvestment Event shall be applied ~~to prepay~~ toward the ~~outstanding~~ prepayment of the Term Loans and the Revolving Loans as set forth in Section ~~2.11(g~~2.11(d). (dc) ~~Notwithstanding anything~~ If, for any Fiscal Year of the Borrower commencing with the Fiscal Year ending December 31, 2020, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply toward the prepayment of the Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.11(d), (A) the ECF Percentage of such Excess Cash Flow, minus (B) the sum of (i) all voluntary prepayments of Term Loans (and Revolving Loans to the ~~contrary~~ extent the applicable Revolving Commitments are permanently reduced by the amount of such payments) and any other prepayments of Permitted Other Debt, Permitted Refinancings and/or other Debt secured by Liens on the Collateral on a pari passu basis or senior basis to the Liens on the Collateral made during such Fiscal Year, plus (ii) the amount of cash consideration paid by the Borrower and its Restricted Subsidiaries in ~~this Agreement~~ connection with Investments permitted by Section 7.6. Each such prepayment and commitment reduction shall be made on a date (~~including clauses~~ an “Excess Cash Flow Application Date”) no later than ten Business Days after the earlier of (bi) the date on which the financial statements of the Borrower referred to in Section 6.1(b), for the Fiscal Year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent (for distribution to the Agents and the Lenders) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) the date such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences)financial statements are actually delivered; provided, however, that ~~for~~ a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment prepayment of Term Loans pursuant to this Section ~~2.11~~2.11(c) shall only be required in the amount (if any) by which such payment amount for the applicable Fiscal Year exceeds $25,000,000. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (gd) Amounts to be applied in connection with ~~any mandatory~~ prepayments made pursuant to this Section 2.11 shall be ~~applied~~ applied, first, to the prepayment of the Term Loans in accordance with Section 2.17(b)) and, second, to reduce the Swingline Loans and then Revolving Loans without a permanent reduction of the Revolving Commitments. The application of any prepayment ~~of Loans~~ pursuant to this Section 2.11 shall be ~~made on a pro rata basis regardless of Type~~made, first, to ABR Loans and, second, to Eurodollar Loans and Term SOFR Loans. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans ~~(to the extent all Revolving Loans are not being prepaid)~~ and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (he) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary ~~contained~~ in ~~this Agreement~~Section 2.11(d) or 2.17, ~~any amounts held by the Administrative Agent pursuant~~ with respect to this clause (h) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment described in ~~respect~~ this Section 2.11 that is allocated to Tranche B-1 Term Loans (such amount, the “Designated Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will give the Administrative Agent notice in writing of such ~~Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness~~ mandatory prepayment at least three (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time3) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days ~~after~~ prior to the date of such ~~rejection)~~ prepayment (each a “Mandatory Prepayment Date”). As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B-1 Term Lender a notice, which shall be ~~applied to prepay~~ in the form of Exhibit G (each, a “Prepayment Option Notice”), and shall include the relevant Term Loans ~~in accordance with the terms hereof (~~of such Lender by an amount equal to the ~~extent~~ portion of the Designated Prepayment Amount indicated in such ~~Net Cash Proceeds or Excess Cash Flow would otherwise have been required~~ Lender’s Prepayment Option Notice as being applicable to ~~be applied if~~ such ~~Other Applicable Indebtedness was not then outstanding)~~Lender’s Tranche B-1

Appears in 1 contract

Sources: Credit Agreement (Davita Inc.)

Mandatory Prepayments and Commitment Reductions. (a) ~~If any Indebtedness shall be incurred~~ Upon receipt by any ~~Group Member~~ Loan Party of, without duplication, (i) any Net Cash Proceeds arising from any Disposition of First-Priority Collateral (other than ~~any Indebtedness permitted to be incurred~~ (x) the Disposition of Inventory in the ordinary course of business on ordinary business terms or (y) the Disposition of Collateral by any ~~such Person in accordance with Section 7.2~~Loan Party to any Borrower), ~~concurrently with~~(ii) subject to Section 7.5 (d) and clause (d) of this Section 4.3, ~~and as~~ any proceeds from a ~~condition~~ Property Loss Event involving First-Priority Collateral or (iii) Extraordinary Receipts relating to ~~closing~~ First-Priority Collateral, the Borrowers shall immediately prepay the Loans (or provide cash collateral in respect of ~~such transaction,~~ Letters of Credit) in an amount equal to ~~100~~105% of ~~the Net Cash Proceeds thereof~~ such proceeds. Any such Mandatory Prepayment shall be applied ~~on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth~~ in accordance with clause (gc) ~~of this Section 2.11~~below. (b) ~~Subject~~ To the extent not required by the Notes Indenture to ~~clauses~~ redeem or otherwise repurchase the Secured Notes, subject to clause (d~~) and (i~~) of this Section ~~2.11~~4.3, ~~if, for~~ upon receipt by any ~~Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to~~ Loan Party of (i) ~~the ECF Percentage for such period~~ any Net Cash Proceeds arising from any Disposition of ~~such Excess Cash Flow over~~ Second-Priority Collateral (~~ii) in each case at the option of the Borrower Representative and to the extent not funded with~~ other than (x) the ~~proceeds~~ Disposition of ~~Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility)~~ the Menominee Paper Machine or (y) the ~~proceeds~~ Disposition of ~~Permitted Cure Securities applied pursuant~~ Collateral by any Loan Party to any Borrower), (ii) subject to Section ~~9.4~~7.5 (d) and clause (d) of this Section 4.3, any proceeds from a Property Loss Event involving Second-Priority Collateral, or (iii) Extraordinary Receipts relating to Second-Priority Collateral, the ~~aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of~~ Borrowers shall immediately prepay the Loans ~~purchased~~ (or provide cash collateral in respect of Letters of Credit) in an amount equal to 105% of such proceeds. Any such Mandatory Prepayment shall be applied in accordance with clause (c) below. (c) Any Mandatory Prepayments made by ~~such Permitted Auction Purchaser~~the Borrowers required to be applied in accordance with this clause (c) ~~pursuant to a Dutch Auction or open market purchase permitted hereunder,~~ shall be applied (~~2) voluntary prepayments of Term Loans and Revolving Loans (but,~~ subject in the case of Mandatory Prepayments made with the proceeds from a Reinvestment Event to Section 7.5 (if applicable) and clause (d) of this Section 4.3) as follows: first, to repay the outstanding principal balance of the Revolving ~~Loans~~Loans until the Revolving Line of Credit shall have been paid in full and then to provide cash collateral for any outstanding Letters of Credit or Letter of Credit Guaranties in an amount equal to 105% of the face amount of the applicable Letters of Credit until all such Letters of Credit have been fully cash collateralized. All repayments of Revolving Loans required to be made pursuant to this clause (c) shall result in a permanent reduction of the Revolving Credit Commitments (and the Revolving Credit Commitments of each Lender shall be reduced by its Ratable Portion of such amount); provided, that, if such repayment was made from the Net Cash Proceeds of a Reinvestment Event, the Revolving Credit Commitments shall not be reduced by such prepayment to the extent of the Reinvestment Deferred Amount of such Reinvestment Event until the Reinvestment Prepayment Date corresponding thereto and, on such Reinvestment Prepayment Date, the Revolving Credit Commitments shall be reduced only to the extent of ~~a concurrent~~ the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any; and ~~permanent reduction in~~ provided, further, that, upon the occurrence of any Default or Event of Default on or before the Reinvestment Prepayment Date corresponding to such Reinvestment Event, the Revolving ~~Commitments)~~Credit Commitments shall be reduced by the entire Reinvestment Deferred Amount corresponding to such Reinvestment Event; and provided, (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (providedfurther, however, that if any ~~payment committed~~ such repayment pursuant to be this clause (c) was made ~~is not actually made in cash within such period, such amount shall be added back to Excess~~ from the Net Cash ~~Flow for the subsequent Excess Cash Flow Period) or, at the option~~ Proceeds of a Disposition of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth type described in clause (gc)(ii)(A)(vi) of ~~this~~ Section ~~2.11~~7.11, ~~provided that no such prepayment~~ the Borrowers shall not be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to ~~be delivered~~ permanently reduce the Revolving Credit Commitments to the ~~Lenders.~~ extent such Disposition was permitted under such clause (~~c) Subject to clauses (d) and (i~~c)(ii)(A)(vi) of ~~this~~ Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g)7.11. (d) Notwithstanding anything ~~to the contrary~~ in ~~this Agreement (including~~ clauses (~~b) and (c) above~~a), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section ~~2.11~~4.3 to the contrary, if (i) any ~~prepayment~~ repayment under clause (c) of ~~Eurocurrency Loans~~ this Section 4.3 is required to be made ~~under this Section 2.11 other than on~~ in respect of a Reinvestment Event, (ii) such Reinvestment Event constitutes a Property Loss Event and the ~~last day of~~ insurance proceeds received by the ~~Interest Period applicable thereto~~Loan Parties in connection therewith do not exceed $600,000 (individually or in the aggregate), or if such insurance proceeds exceed $600,000 (individual or in the aggregate), the applicable ~~Borrower may~~Loan Party shall have obtained the consent of the Agent in accordance with Section 7.5(d) hereof, and (iii) the applicable Loan Party shall have delivered to the Agent a Reinvestment Notice and, in ~~its sole discretion~~the case of Property Loss Event, ~~deposit~~ shall have complied with the ~~amount~~ provisions of Section 7.5 of this Financing Agreement, then any such ~~prepayment otherwise~~ Mandatory Prepayment shall not be required to the extent of the Reinvestment Deferred Amount of such Reinvestment Event until the Reinvestment Prepayment Date corresponding thereto and, on such Reinvestment Prepayment Date, the applicable Loan required to be ~~made thereunder with~~ prepaid shall be so prepaid and reduced to the ~~Administrative Agent, to be held as security for the obligations~~ extent of the Reinvestment Prepayment Amount applicable ~~Borrower~~ to ~~make~~ such ~~prepayment pursuant~~ Reinvestment Event, if any; provided, however, that, upon the occurrence of any Event of Default on or before the Reinvestment Prepayment Date corresponding to ~~a cash collateral agreement to be entered into on terms reasonably satisfactory to~~ such Reinvestment Event, the ~~Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent~~ Borrowers shall be ~~authorized (without any further action by or notice~~ required to ~~or from any Borrower or any other Loan Party) to apply such amount to~~ prepay the ~~prepayment of such Eurocurrency~~ Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (hc) pending application to any Eurocurrency Loans shall be held and applied to the satisfaction of such Eurocurrency Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section ~~2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured~~ 4.3 by the ~~Collateral on a pari passu basis (determined without regard~~ entire Reinvestment Deferred Amount corresponding to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)Reinvestment Event.

Appears in 1 contract

Sources: Financing Agreement (Coastal Paper CO)

Mandatory Prepayments and Commitment Reductions. (a) If any Indebtedness shall be incurred by any Group Member (other than any Indebtedness permitted to be incurred by any such Person in accordance with Section 7.2), concurrently with, and as a condition to closing of such transaction, an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11. (b) Subject to clauses (d) and (i) of this Section 2.11, if, for any Excess Cash Flow Period, there shall be Excess Cash Flow, an amount equal to (i) the ECF Percentage for such period of such Excess Cash Flow over (ii) in each case at the option of the Borrower Representative and to the extent not funded with (x) the proceeds of Indebtedness constituting “long term indebtedness” (or a comparable caption) under GAAP (other than Indebtedness in respect of any revolving credit facility) or (y) the proceeds of Permitted Cure Securities applied pursuant to Section 9.4, the aggregate amount of (1) all Purchases by any Permitted Auction Purchaser (determined as the par value of the Loans purchased by such Permitted Auction Purchaser) pursuant to a Dutch Auction or open market purchase permitted hereunder, (2) voluntary prepayments of Term Loans and Revolving Loans (but, in the case of Revolving Loans, only to the extent of a concurrent and permanent reduction in the Revolving Commitments), (3) optional prepayments, purchases and redemptions and buybacks (with credit given to the par value of the loans or notes repurchased) by UK Holdco and the Restricted Subsidiaries of other Indebtedness that is secured by a Lien ranking pari passu (determined without regard to the control of remedies) with the Lien securing the Obligations (but, in the case of revolving indebtedness, only to the extent of a concurrent and permanent reduction in the revolving commitments), (4) payments by UK Holdco and the Restricted Subsidiaries in cash on account of Capital Expenditures, (5) payments by UK Holdco and the Restricted Subsidiaries in cash on account of acquisitions or other Investments permitted hereunder (including any earn-out payments) and (6) Restricted Payments made in cash pursuant to Section 7.3(a), (b)(iv), (b)(v), (b)(vi), (b)(viii), (b)(x), (b)(xii), (b)(xiii), (b)(xix) and (b)(xxi), in each case, made during, or committed to be made within 12 months of the end of, the Excess Cash Flow Period (provided, however, that if any payment committed to be made is not actually made in cash within such period, such amount shall be added back to Excess Cash Flow for the subsequent Excess Cash Flow Period) or, at the option of the Borrower Representative, after the Excess Cash Flow Period and prior to the Excess Cash Flow Application Date, shall, on the relevant Excess Cash Flow Application Date, be applied toward the prepayment of the Term Loans as set forth in clause (g) of this Section 2.11, provided that no such prepayment shall be made if the Excess Cash Flow for any Excess Cash Flow Period is less than $10,000,000 (and, if Excess Cash Flow exceeds such amount, only such excess shall be subject to prepayment). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 10 Business Days after the date on which the financial statements of UK Holdco referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders. (c) Subject to clauses (d) and (i) of this Section 2.11, if, on any date, UK Holdco or any Restricted Subsidiary shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event in excess of (i) the greater of $2,000,000 and 0.7% of Consolidated EBITDA as of the most recently ended Reference Period in any single transaction or series of related transactions and (ii) with respect to all other Net Cash Proceeds not excluded pursuant to the preceding clause (i), the greater of $5,000,000 and 1.6% of Consolidated EBITDA as of the most recently ended Reference Period for all such Net Cash Proceeds in any fiscal year, then, unless the Borrower Representative has determined in good faith that such Net Cash Proceeds shall be reinvested in its business (a “Reinvestment Event”), an aggregate amount equal to 100% of such Net Cash Proceeds shall be applied within five Business Days of such date to prepay outstanding Term Loans in accordance with this Section 2.11; provided that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to any Asset Sale or Recovery Event, shall be applied to prepay the outstanding Term Loans as set forth in Section 2.11(g). (d) Notwithstanding anything to the contrary in this Agreement (including clauses (b) and (c) above), to the extent that the Borrower Representative has determined in good faith that (i) any of or all the Net Cash Proceeds of any Asset Sale or Recovery Event by a Subsidiary or Excess Cash Flow attributable to Subsidiaries (or branches of Subsidiaries) are prohibited or delayed by applicable local law from being repatriated to the relevant Borrower(s) (including as a result of financial assistance and corporate benefit restrictions and fiduciary and statutory duties of the relevant directors), (ii) such repatriation would present a material risk of liability for the applicable Subsidiary or its directors or officers (or gives rise to a material risk of breach of fiduciary or statutory duties by any director or officers) or (iii) in the case of Foreign Subsidiaries, such repatriation or any distribution of the relevant amounts would reasonably be expected to result in material adverse Tax consequences, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times set forth in this Section 2.11 but may be retained by the applicable Subsidiary or branch (the Borrowers hereby agreeing to cause the applicable Subsidiary or branch to promptly take commercially reasonable actions to permit such repatriation without violating applicable local law or incurring material adverse Tax consequences); provided, that for a period of 360 days from receipt of such Net Cash Proceeds, if such repatriation becomes permitted under such applicable local law, would not present a material risk as described in clause (ii) above, or no such material adverse Tax consequences would result from such distribution, as the case may be, such distribution will be promptly effected and such distributed Net Cash Proceeds will be promptly (and in any event not later than 10 Business Days after such distribution) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of Term Loans pursuant to this Section 2.11. (e) In the event the aggregate Outstanding Amount of Revolving Loans, L/C Obligations and Swingline Loans at any time exceeds (the “Revolving Excess”) the Total Revolving Commitments then in effect, the Revolving Borrowers shall immediately (or, if such Revolving Excess results solely from a Recalculation, within 2 Business Days) repay Swingline Loans and Revolving Loans and Collateralize Letters of Credit to the extent necessary to remove such Revolving Excess. (f) The Borrower Representative shall deliver to the Administrative Agent notice, substantially in the form of Exhibit E or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower Representative (on behalf of the Borrowers), of each prepayment required under this Section 2.11, which notice must be received by the Administrative Agent not less than three Business Days (or such shorter time as the Administrative Agent shall reasonably agree) prior to the date such prepayment shall be made. The Administrative Agent will promptly notify each applicable Lender of such notice. Each such Lender may reject all of its Pro Rata Share of any prepayment pursuant to clause (b) or (c) above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower Representative no later than 12:00 p.m. (New York City time), two Business Days after the date of such Lender’s receipt of such notice from the Administrative Agent. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of such prepayment. Any Declined Proceeds may be retained by the Borrowers (such retained amount, the “Retained Declined Proceeds”). The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11, an Officer’s Certificate setting forth in reasonable detail the calculation of the amount of such prepayment. (g) Amounts to be applied in connection with any mandatory prepayments made pursuant to this Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.17(b). The application of any prepayment of Loans pursuant to this Section 2.11 shall be made on a pro rata basis regardless of Type. Each prepayment of the Loans under this Section 2.11 (except in the case of Revolving Loans that are ABR Loans (to the extent all Revolving Loans are not being prepaid) and Swingline Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. (h) Notwithstanding any of the other provision of this Section 2.11, if any prepayment of Eurocurrency Loans or Term SOFR Loans is required to be made under this Section 2.11 other than on the last day of the Interest Period applicable thereto, the applicable Borrower may, in its sole discretion, deposit the amount of any such prepayment otherwise required to be made thereunder with the Administrative Agent, to be held as security for the obligations of the applicable Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of such Eurocurrency Loans or Term SOFR Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made); provided that such unpaid Eurocurrency Loans or Term SOFR Loans shall continue to bear interest in accordance with Section 2.15 until such unpaid Eurocurrency Loans or Term SOFR Loans have been prepaid. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from any Borrower or any other Loan Party) to apply such amount to the prepayment of the applicable Eurocurrency Loans or Term SOFR Loans in accordance with this Section 2.11 (determined as of the date such prepayment was required to be originally made). Notwithstanding anything to the contrary contained in this Agreement, any amounts held by the Administrative Agent pursuant to this clause (h) pending application to any Eurocurrency Loans or Term SOFR Loans shall be held and applied to the satisfaction of such Eurocurrency Loans or Term SOFR Loans prior to any other application of such property as may be provided for herein. (i) Notwithstanding the foregoing provisions of this Section 2.11, at the Borrower Representative’s option, outstanding Indebtedness that is secured by the Collateral on a pari passu basis (determined without regard to the control of remedies) with the Obligations hereunder (“Other Applicable Indebtedness”) may share, on the terms set forth below, in any mandatory prepayment of the Term Loans pursuant to Section 2.11(b) and/or (c), and the amount of any such prepayment required to be made hereunder shall be reduced accordingly. Any Net Cash Proceeds or Excess Cash Flow may be applied to Other Applicable Indebtedness only to (and not in excess of) the extent to which a mandatory prepayment in respect of such Asset Sale, Recovery Event or Excess Cash Flow is required under the terms of such Other Applicable Indebtedness (with any remaining Net Cash Proceeds or Excess Cash Flow applied to prepay outstanding Term Loans in accordance with the terms hereof), unless such application would result in the holders of Other Applicable Indebtedness receiving in excess of their pro rata share (determined on the basis of the aggregate Outstanding Amount of Term Loans and Other Applicable Indebtedness at such time) of such Net Cash Proceeds relative to Term Lenders, in which case such Net Cash Proceeds may only be applied to Other Applicable Indebtedness on a pro rata basis with outstanding Term Loans. To the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased, repaid or prepaid with any such Net Cash Proceeds or Excess Cash Flow, the declined amount of such Net Cash Proceeds or Excess Cash Flow shall promptly (and, in any event, within 10 Business Days after the date of such rejection) be applied to prepay Term Loans in accordance with the terms hereof (to the extent such Net Cash Proceeds or Excess Cash Flow would otherwise have been required to be applied if such Other Applicable Indebtedness was not then outstanding)

Appears in 1 contract

Sources: Incremental Facility Amendment (CLARIVATE PLC)

Common use of Mandatory Prepayments and Commitment Reductions Clause in Contracts