Mandatory Prepayments. (i) [Reserved]. (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). (iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period. (iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period. (v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent. (vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c). (vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 2 contracts
Mandatory Prepayments. (a) If at any time there shall occur, whether voluntarily, involuntarily or by operation of law, a sale, transfer, assignment, conveyance, option or other disposition of, or any mortgage, hypothecation, encumbrance, financing or refinancing of (i) [Reserved].
any of the Collateral Property, (ii) In any of the event thatCollateral or (iii) any direct or indirect interest of Borrower in a Subsidiary Property Owner (each of (i), after (ii) and (iii) being a “Transfer”), except for leasing activities permitted under §8.11 and Permitted Liens, as expressly set forth in §5.2, or approved by Agent in writing, all of the Agreement DateObligations outstanding on such date, together with any Borrower Party and all accrued but unpaid interest thereon and prepayment fees shall become absolutely due and payable. Each Subsidiary Property Owner acknowledges and agrees that all payments (less any customary expenses payable to any Person that is unrelated to the Borrower, Guarantors or any of their respective partners, members, managers, officers or directors or any Person affiliated with the Borrower, Guarantors or any their respective partners, members, managers, officers or directors) actually received by such Subsidiary Property Owner as a result of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence Transfer shall be paid within one (1) Business Day of receipt of the proceeds thereof to Agent and will be deemed payments to Agent by Borrower. Agent shall apply any and all such Borrower Party to the Lenders as a mandatory prepayment payments actually received by Agent in satisfaction of the Obligations in accordance with Section 2.6(b)the terms hereof. Notwithstanding anything in this Agreement to the contrary, in the event Borrower or Aquia elects to transfer all of ▇▇▇▇▇ ▇▇▇▇▇ Center to a joint venture, then all of the Obligations outstanding on such date, together with any and all accrued but unpaid interest thereon and prepayment fees shall become absolutely due and payable.
(iiib) One hundred percent (100%) of the Net Cash Proceeds from If at any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses time (i) the Secured Credit Agreement is terminated, or (ii) all of the “Revolving Credit Commitments” (as defined in the Secured Credit Agreement) are terminated, then in any of such events the Commitment under this Agreement shall terminate and the Borrower shall immediately pay to Agent on behalf of the Banks all principal, interest and other amounts due and payable under this Agreement.
(c) If at any time the sum of the aggregate of the Outstanding Loans exceeds the lesser of (i) the Total Commitment, and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromTotal Development Costs, the Borrower Parties may elect to reinvest Net Cash Proceeds from any shall immediately pay the amount of such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior excess to the date any payment thereof would have been required hereunder Agent for the respective accounts of the intent to reinvest such Net Cash Proceeds in similar assets Banks for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) application to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment PeriodLoans.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of Beginning the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal calendar quarter ending on March 31, 2010, and continuing on each June 30, 2018) are delivered pursuant September 30, December 31 and March 31 thereafter (each such day shall be referred to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the as a “ECF Prepayment Quarterly Reduction Date”), the Total Commitment shall automatically be reduced by $1,250,000. Borrower Parties shall make a mandatory prepayment pay to Agent for the respective accounts of the Obligations in an Banks for application to the Loans such amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory as is necessary so that the sum of the Borrower Parties certifying Outstanding Loans does not exceed the manner in which Excess Cash Flow new Total Commitment from and after the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentmost recent Quarterly Reduction Date.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Ramco Gershenson Properties Trust), Revolving Credit Agreement (Ramco Gershenson Properties Trust)
Mandatory Prepayments. (a) The Company shall make a prepayment upon the occurrence of any of the following (each a “Mandatory Prepayment Event”) at the following times and in the following amounts unless an Event of Default is then existing, in which case the provisions of the Guaranty and Collateral Agreement shall be applicable with respect to application of the proceeds thereof:
(i) [Reserved]Concurrently with the receipt by any Loan Party (other than Holdings) of any Net Cash Proceeds from any Asset Disposition (other than as a result of an Event of Loss), then in an amount equal to 100% of all such Net Cash Proceeds; provided, that, if no Event of Default exists at the time of receipt of any Net Cash Proceeds or at the time of the reinvestment thereof as provided below, such prepayment shall not be required to the extent the Company reinvests the Net Cash Proceeds of such Asset Disposition in another asset performing the same or a similar function or that is otherwise useful in the business of a Loan Party (other than Holdings), within 60 days after the date of such Asset Disposition or enters into a binding commitment thereof within said 60-day period and promptly thereafter makes such reinvestment.
(ii) In Concurrently with the event receipt by any Loan Party (other than Holdings) of any Net Cash Proceeds from any issuance of Capital Securities of any Loan Party (other than Holdings) (excluding (A) any issuance of Capital Securities pursuant to any employee or director option program, benefit plan or compensation program, and (B) any issuance by any Loan Party to another Loan Party), in an amount equal to 100% of all such Net Cash Proceeds.
(iii) Concurrently with the receipt by any Loan Party (other than Holdings) of any Net Cash Proceeds from any issuance of any Debt of any Loan Party (other than Holdings) (excluding Debt permitted by Section 11.1), in an amount equal to 100% of all such Net Cash Proceeds.
(iv) Concurrently with the receipt by any Loan Party (other than Holdings) of any Net Cash Proceeds from any Insurance Proceeds as a result of an Event of Loss, an amount equal to 100% of all such Net Cash Proceeds; provided, that, after if no Event of Default exists at the Agreement Datetime of receipt of any Net Cash Proceeds or at the time of the reinvestment thereof as provided below, any Borrower Party or any Subsidiary of a Borrower Party such prepayment shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of not be required to the extent the Company reinvests the Net Cash Proceeds received by of such Event of Loss in another asset performing the same or a similar function or that is otherwise useful in the business of a Loan Party (other than Holdings), within 60 days after the date of such Event of Loss or enters into a binding commitment thereof within said 60-day period and promptly thereafter makes such reinvestment.
(b) If on any Borrower Party or such Subsidiary from such incurrence day the Revolving Outstandings plus the outstanding amount of the Swing Line Loan exceeds the Revolving Loan Availability, the Company shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party day prepay Revolving Loans in an amount sufficient to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)eliminate such excess.
(iiic) One hundred percent (100%) of the Net Cash Proceeds from If on any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date day on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered Revolving Commitment is reduced pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)6.2.1, the Borrower Parties shall make a mandatory prepayment Revolving Outstandings plus the outstanding amount of the Obligations Swing Line Loan exceeds such reduced Revolving Commitment, the Company shall immediately on such day prepay Revolving Loans in an amount equal sufficient to fifty percent (50%) of Excess Cash Flow for eliminate such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentexcess.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 2 contracts
Sources: Loan Modification Agreement (Pioneer Financial Services Inc), Credit Agreement (Pioneer Financial Services Inc)
Mandatory Prepayments. (i) [Reserved]Upon the receipt by any Loan Party or any of their Subsidiaries of any Net Cash Proceeds from or in connection with any casualty or loss event in excess of US$5,000,000.00, such Loan Party or such Subsidiary shall cause the Borrowers to prepay the Loans, on the third (3rd) Business Day immediately succeeding the day of receipt of such Net Cash Proceeds, in an amount equal to:
(A) if the casualty or loss event is with respect to the Collateral, the Lenders’ Secured Pro Rata Share of the Net Cash Proceeds (or the Dollar Equivalent thereof); and
(B) if the casualty or loss event is with respect to any asset other than the Collateral, the lesser of (x) the aggregate amount of such Net Cash Proceeds (or the Dollar Equivalent thereof) and (y) the product of (1) the then aggregate principal amount outstanding of the Loans, and (2) a fraction, the numerator of which is the aggregate amount of principal outstanding under the Loans on the day of receipt of such Net Cash Proceeds, and the denominator of which is the sum of the aggregate amount of principal outstanding under the Loans on the day of receipt of such Net Cash Proceeds and the Dollar Equivalent (as of the day of receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary) of the aggregate amount of principal outstanding under any other Indebtedness of the Loan Parties or any of their Subsidiaries requiring that a mandatory prepayment be made with the Net Cash Proceeds of such casualty or loss event.
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party The Borrowers shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on by electronic mail (with confirmation of transmission) or prior to the date hand delivery of any payment thereof would have been required prepayment hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party not later than 11:00 a.m., at least three (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business3) and identifies the long-term assets which shall constitute such reinvestment within 180 days of Business Days before the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the any prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b2.03(b)(i). Each such notice shall specify the prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculateddate, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being each Loan to be prepaid and applied in the manner set forth in Section 2.10 and shall be subject amount of accrued interest thereon to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters date of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturitiesprepayment. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion Promptly following receipt of any mandatory prepayment required pursuant to the terms hereofsuch notice, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to shall advise the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory Lenders of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereundercontents thereof.
Appears in 2 contracts
Sources: Credit & Guaranty Agreement (Auna S.A.), Credit & Guaranty Agreement (Auna S.A.)
Mandatory Prepayments. (a) The Borrowers shall make a prepayment of the Loans upon the occurrence of any of the following (each a "Mandatory Prepayment Event") at the following times and in the following amounts (such applicable amounts being referred to as "Designated Proceeds"):
(i) [Reserved]Concurrently with the receipt by any Borrower or any Subsidiary of any Borrower of any Net Cash Proceeds from any Asset Sale, in an amount equal to 100% of such Net Cash Proceeds.
(ii) In Concurrently with the event that, after the Agreement Date, receipt by any Borrower Party or any Subsidiary of a any Borrower Party shall incur of any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received from any issuance of equity securities (excluding, to the extent otherwise permitted to be made hereunder, (w) any issuance of shares of capital stock to any current shareholder, (x) any issuance of shares of capital stock pursuant to any employee or director stock option program, benefit plan or compensation program, and (y) any issuance by any Subsidiary of any Borrower Party or to such Subsidiary from Borrower) in an amount equal to 100% of such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)Net Cash Proceeds.
(iii) One hundred percent (100%) Concurrently with the receipt by any Borrower or any Subsidiary of the any Borrower of any Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result issuance of any enforcement action Debt (excluding Debt permitted by any member of the Lender Group or otherwise clauses (other than with respect to the sale, transfer or disposition of assets permitted under clauses a) through (i) and (ii) of Section 8.7(b)11.7,but including any Subordinated Debt), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to 100% of such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment PeriodProceeds.
(iv) One Within one hundred percent twenty (100%120) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier end of Fiscal Year 2000 and ninety (A90) days after the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30end of each Fiscal Year thereafter, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to (i) seventy-five percent (75%) of Excess Cash Flow for such Fiscal Year if the Total Debt to EBITDA Ratio for the Computation Period ending on December 31 of such Fiscal Year is not less than 3.00:1.00 or (ii) fifty percent (50%) of Excess Cash Flow for such fiscal quarter Fiscal Year if the Total Debt to EBITDA Ratio for the Computation Period ending on December 31 of such Fiscal Year is less than 3.00:1.00, in each case as determined by reference to the Compliance Certificate accompanying the respective annual audit report and delivered for such Computation Period in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent11.1.3.
(viv) Any payments due under this Section 2.6(c) shall be accompanied Concurrently with the receipt by all accrued interest on the principal amount any Borrower or any Subsidiary of any Borrower of any proceeds of the Loans being prepaid and applied Life Insurance, in the manner set forth in Section 2.10 and shall be subject an amount equal to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters 100% of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)such proceeds.
(viib) The Borrower If on any day the Revolving Outstandings exceed the Borrowing Base, the Borrowers shall give prior written notice immediately prepay Revolving Loans and/or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount sufficient to eliminate such excess.
(c) If, on any prepayment required under this Section 2.6(c) to day on which the Administrative Agent as far in advance thereof as Revolving Commitment Amount is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required reduced pursuant to clause (v) aboveSection 6.1.3, deliver to the Administrative Agent at least three Business Days prior to making Revolving Outstandings exceed the Revolving Commitment Amount, the Borrowers shall immediately prepay Revolving Loans or Cash Collateralize the outstanding Letters of each such prepaymentCredit, or do a certificate signed by an Authorized Signatory combination of the Borrower setting forth foregoing, in reasonable detail the calculation of the an amount of sufficient to eliminate such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderexcess.
Appears in 2 contracts
Sources: Credit Agreement (Thane International Inc), Credit Agreement (Thane International Inc)
Mandatory Prepayments. (ia) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Within five Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Loan Party or any of its Restricted Subsidiaries shall be paid within five of any cash proceeds of any sale or disposition by any Loan Party or any of its Restricted Subsidiaries of any of its assets (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(bother than any Excluded Issuance). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromany cash proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent all such proceeds, net of (50%i) commissions and other transaction costs, fees, expenses and taxes (including tax distributions required as a result thereof) properly attributable to such transaction and payable by any Loan Party or any of Excess Cash Flow its Restricted Subsidiaries in connection therewith (in each case, paid to non-Affiliates) and (ii) any debt required to be prepaid from such cash proceeds; provided that the Borrower shall not be required to prepay the Obligations with respect to (i) net proceeds from the sales or dispositions of assets permitted by Section 7.6(a) or (b), (ii) net proceeds that are reinvested in assets then used or usable in the business of the Loan Parties and their Restricted Subsidiaries within 180 days following receipt thereof, so long as such proceeds are held in Controlled Accounts at SunTrust Bank or subject to Control Account Agreements until reinvested, (iii) any designation of an Unrestricted Subsidiary, (iv) any sale or disposition to a Loan Party and (v) any other net proceeds not described in clauses (i) through (iv) that, in the aggregate for all such fiscal quarter in accordance sales, dispositions, casualty insurance policies or eminent domain, condemnation or similar proceedings after the Closing Date, do not exceed $10,000,000; provided, further, that, notwithstanding the foregoing proviso, the Borrower shall be required to prepay the Obligations with respect to proceeds from the sale of any Capital Stock of Gulf LNG permitted by Section 2.6(b7.6(d). Each Any such prepayment shall be accompanied applied in accordance with subsection (c) of this Section.
(b) No later than the Business Day following the date of receipt by a certificate signed any Loan Party or any of its Restricted Subsidiaries of any proceeds from any issuance of Indebtedness by an Authorized Signatory any Loan Party or any of its Restricted Subsidiaries, the Borrower Parties certifying shall prepay the manner Obligations in which Excess Cash Flow an amount equal to all such proceeds, net of underwriting discounts and commissions and other transaction costs, fees, expenses and taxes (including tax distributions required as a result thereof) properly attributable to such transaction and payable by any Loan Party or any of its Restricted Subsidiaries in connection therewith (in each case, paid to non-Affiliates); provided that the resulting Borrower shall not be required to prepay the Obligations with respect to proceeds of Indebtedness permitted under Section 7.1. Any such prepayment were calculated, which certificate shall be applied in form and substance satisfactory accordance with subsection (c) of this Section.
(c) Any prepayments made by the Borrower pursuant to subsection (a) or (b) of this Section shall be applied as follows: first, to the Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; fifth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments; and sixth, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses fourth through sixth above, unless an Event of Default has occurred and is continuing and the Required Lenders so request in writing.
(vid) Any payments If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay the Swingline Loans and the 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 this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable 2.19. Each prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first as follows: first, to the Swingline Loans to the full extent thereof; second, to the Base Rate Advances Loans to the full extent thereof; and then third, to the Eurodollar Advances in direct order Loans to the full extent thereof. If, after giving effect to prepayment of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow all Swingline Loans and Revolving Loans, the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in Cash Collateralize its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except reimbursement obligations with respect to prepayments required pursuant all Letters of Credit in an amount equal to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date excess plus any accrued and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderunpaid fees thereon.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Arc Logistics Partners LP), Revolving Credit Agreement (Arc Logistics Partners LP)
Mandatory Prepayments. (a) Unless the Majority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, (i) [Reserved].
(ii) In the event that, if any Indebtedness is incurred after the Agreement Datedate hereof by Holdings, any the Borrower Party or any Subsidiary of a Borrower Party shall incur its Subsidiaries (excluding any Funded Debt other than Funded Debt permitted under Indebtedness incurred in accordance with Section 8.17.2 as in effect on the date of this Agreement), one hundred percent (an amount equal to 100%) % of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from thereof shall be applied on the date of such incurrence shall be paid within one (1) Business Day of receipt of toward the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations Term Loans as set forth in accordance with Section 2.6(b2.12(d) and Section 2.18(b) and (ii) if any Capital Stock shall be issued after the date hereof by Holdings, the Borrower or any of its Subsidiaries (excluding any issuance of Capital Stock (x) the proceeds of which constitute Designated Equity Amounts or (y) issued as compensation to employees of Holdings, the Company or any of its Subsidiaries or to management of Holdings or any of its Subsidiaries in the ordinary course of business).
(iii) One hundred percent (100%) , an amount equal to 50% of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party thereof shall be paid within two (2) Business Days applied on the date of receipt thereof by any Borrower Party as a mandatory such incurrence toward the prepayment of the Obligations Term Loans as set forth in accordance with Section 2.6(b2.12(d) and Section 2.18(b). Notwithstanding .
(b) Unless the foregoingMajority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, unless an Event of Default shall have occurred and be continuing or would result therefromif on any date Holdings, the Borrower Parties may elect to reinvest or any of its Subsidiaries shall receive Net Cash Proceeds from any such saleAsset Sale or Recovery Event then, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of unless a Borrower Party (which assets Reinvestment Notice shall be consistent with the assets utilized by such Borrower Party delivered in the ordinary course respect thereof within five Business Days thereafter, 100% of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to applied on such fifth Business Day toward the prepayment of the Obligations Term Loans as set forth above in Section 2.6(b2.12(d) and Section 2.18(b); provided, that, notwithstanding the foregoing, (bi) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in the business of a Borrower Party within 180 days any fiscal year of the date of such sale or receipt of insurance proceeds Borrower, (the “Net Cash Proceeds ii) on each Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment PeriodPrepayment Date, an amount equal to such remaining Net Cash Proceeds is required the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to prepay toward the Obligations prepayment of the Term Loans as set forth in accordance with Section 2.6(b2.12(d) immediately upon the expiration and Section 2.18(b) and (iii) for purposes of this Section 2.12(b), the Net Cash Proceeds Reinvestment Periodof 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.
(ivc) One hundred percent (100%) Unless the Majority Facility Lenders in respect of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in Term Loan Facility shall otherwise agree, if, for any fiscal year received by any of the Borrower Party or any of its Subsidiaries commencing with the fiscal year in which the Effective Date occurs, there shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromExcess Cash Flow, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a)shall, (b) or (d) of on the definition thereofrelevant Excess Cash Flow Application Date, so long as apply the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt ECF Percentage of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to Excess Cash Flow toward the prepayment of the Obligations Term Loans as set forth above in Section 2.6(b2.12(d) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”Section 2.18(b). If Each such prepayment and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, commitment reduction shall be made on a date (an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b“Excess Cash Flow Application Date”) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) no later than five Business Days after the earlier of (Ai) the date on which the quarterly unaudited financial statements of the Borrower referred to in Section 6.1(a), for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant year with respect to Section 7.1(b), or (B) the date on which such financial statements were prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.
(d) The application of any prepayment pursuant to this Section 7.1(b) shall be made first to Base Rate Loans and second to Eurodollar Loans (in a manner, to the “ECF Prepayment Date”extent practicable and permitted hereunder, which minimizes amounts payable under Section 2.21 as a result of such prepayment), the Borrower Parties shall make a mandatory . Each prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Term Loans under this Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory accrued interest to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest date of such prepayment on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)prepaid.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Alliance Laundry Systems LLC), Credit Agreement (Alliance Laundry Systems LLC)
Mandatory Prepayments. The Borrower shall make mandatory prepayments of the Loans as follows:
(a) If, on any date, the Borrower or any of its Subsidiaries shall sell, assign, lease, transfer, contribute, convey, issue or otherwise dispose of, or grant options, warrants or other rights with respect to, any of its assets (any of the foregoing being a "Disposition") consisting of (i) [Reserved].
Collateral, (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a the Borrower Party shall incur any Funded Debt (other than Funded Debt a Disposition permitted under Section 8.1, one hundred percent (100%9.4) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) a block of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action insurance business by any member Insurance Subsidiary in one or a series of the Lender Group or otherwise (other than related transactions with respect to the sale, transfer or disposition proceeds in excess of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom$25,000,000, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) shall promptly notify the Administrative Agent in writing on of such Disposition, including the amount of Net Proceeds received by the Borrower or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its businessSubsidiaries in respect of such Disposition (and the amount and other type of consideration so received) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be appliedpromptly applied after the receipt from time to time of such Net Proceeds to repay first, the principal amount of the Tranche A Loans then outstanding (together with any interest accrued thereon) and second, the principal amount of the Tranche B Loans then outstanding (together with any interest accrued thereon). To the extent the Net Proceeds of any such Disposition exceed the amount of the Loans then outstanding (together with any interest accrued thereon), or, at the time of such Disposition, the Loans shall have been paid in full, such Net Proceeds shall be applied to repay any remaining Liabilities. Notwithstanding anything to the prepayment of contrary contained in this clause (a), to the Obligations as extent any such Disposition relates to the Collateral pledged under the Borrower Shared Pledge Agreement or the Borrower Non-Shared Pledge Agreement, the Net Proceeds received by the Borrower from such Disposition shall be applied in the order set forth above in Section 2.6(bSections 6.2(a), (b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”c). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(ivb) One hundred percent (100%) of If, on any date, the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five sell, issue or grant options, contingent interest rights, warrants or other rights with respect to any of its equity or debt securities (5any of the foregoing being a "Sale") Business Days or related in any way to its earnings or performance (other than (i) pursuant to a Pension Plan or Benefit Program of receipt thereof the Borrower or such Subsidiary for the benefit of their respective employees and (ii) equity or debt securities issued by the Borrower Parties to its Subsidiaries or such Subsidiaries to the Lenders as a mandatory prepayment Borrower or to any other Subsidiary of the Obligations in accordance with Section 2.6(bBorrower). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) shall promptly notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked AccountSale, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing including the payment amount of the Obligations then outstanding, (B) may be withdrawn Net Proceeds received by the applicable Borrower Party solely to reinvest or any of its Subsidiaries in such identified long-term assets that are useful in the business respect of such Borrower Party Sale (and (Cthe amount and other type of consideration so received) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts Net Proceeds shall be applied) promptly applied after the receipt from time to time of such Net Proceeds to repay first, the prepayment principal amount of the Obligations as set forth above in Section 2.6(bTranche A Loans then outstanding (together with any interest accrued thereon) and (b) deliver a certificate from second, the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days principal amount of the date Tranche B Loans then outstanding (together with any interest accrued thereon). To the extent the Net Proceeds of receipt any such Sale exceed the amount of the Loans then outstanding (together with any interest accrued thereon), or, at the time of such proceeds (Sale, the “Extraordinary Receipts Reinvestment Period”). If and to the extent Loans shall have been paid in full, such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to Net Proceeds shall be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodrepay any remaining Liabilities.
(vc) On or before the date that is ten one hundred twentieth (10120) Business Days day after the earlier end of each Fiscal Year of the Borrower (A) and with respect to the date Fiscal Year ending December 31, 2000, on which the quarterly unaudited financial statements for any fiscal quarter (commencing February 1, 2001), beginning with the fiscal quarter Fiscal Year ending June 30December 31, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)1997, the Borrower Parties shall make a mandatory prepayment of repay or cause to be repaid the Obligations Loans in an amount equal to fifty percent (i) 50%) % of Excess Cash Flow for the Fiscal Year most recently ended less (ii) any optional prepayments made pursuant to Section 4.1 during such fiscal quarter period, or in accordance with Section 2.6(b)the one hundred twenty (120) day period occurring immediately after such period prior to any prepayment being due hereunder. Each The proceeds of such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate payment shall be in form and substance satisfactory applied, first to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Tranche A Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(cthen outstanding (together with interest accrued thereon) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect second, to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Tranche B Loans then outstanding (together with interest accrued thereon). To the extent that the amount to be prepaidrepaid pursuant to this clause (c) exceeds the amount of the Loans then outstanding (together with any unpaid interest accrued thereon) or, at the time of such repayment, the Loans shall have been paid in full, the proceeds of such Excess Cash Flow shall be applied to repay any remaining Liabilities. Notwithstanding anything to the contrary hereincontained in this clause (c), failure no Excess Cash Flow payment shall be required after the Borrower has permanently reduced the Commitments of the Banks pursuant to provide such notice hereunder Section 4.1 or Section 4.9 (resulting from mandatory prepayments required by this Section 4.3) to an aggregate amount equal to $350,000,000 or less; provided that for purposes of this Section 4.3(c) only, any reduction in the Commitments pursuant to Section 2.6 shall not preclude be excluded from any reduction in the Borrower’s ability to make such prepayment hereunderCommitments.
Appears in 1 contract
Sources: Credit Agreement (Conseco Inc Et Al)
Mandatory Prepayments. (i) [Reserved]If on any day the sum of the Revolver Usage exceeds the Borrowing Base, Borrower shall immediately pay to Agent an amount equal to such excess to be applied to the outstanding principal of the Advances.
(ii) In If on any day the event Revolver Commitment is terminated, Borrower shall immediately repay the Term Loan.
(iii) If at any time the Fixed Asset Coverage Ratio is less than 0.50 to 1.0, Borrower shall immediately pay to Agent an amount equal to such excess, to be applied to the principal installments of the Term Loan in the inverse order of maturity. Agent shall have the right to have the Eligible Equipment and the Eligible Real Property Collateral reappraised by a qualified appraisal company selected by Agent in its Permitted Discretion from time to time after the Closing Date for the purposes of the definition of "Term Loan Amount" and this SECTION 2.4(C)(III), provided that, after so long as no Event of Default has occurred and is continuing, appraisals of the Agreement Date, Eligible Equipment shall not be conducted more frequently than once each calendar year and appraisals of the Eligible Real Property Collateral shall not be conducted more frequently than once each calendar year.
(iv) Immediately upon any sale or disposition by Borrower Party of property or any Subsidiary of a Borrower Party shall incur any Funded Debt assets (other than Funded Debt permitted under Section 8.1a Permitted Disposition described in clauses (b), one hundred percent (c), (d), (e) or (f) of the definition of such term) or the receipt by Borrower of the proceeds of any insurance policy with respect to Inventory, Equipment or Real Property or condemnation awards with respect to Inventory, Equipment or Real Property, Borrower shall prepay the outstanding principal amount of the Term Loan and the Advances in accordance with SECTION 2.4(D) in an amount equal to 100%) % of the Net Cash Proceeds or the insurance or condemnation proceeds received by any Borrower Party such Person in connection with such sales or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment dispositions or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior event to the date any payment thereof would have been required hereunder extent that the aggregate amount of the intent to reinvest such Net Cash Proceeds in similar assets or proceeds of insurance or condemnation awards received by Borrower (and not paid to Agent as a prepayment of the Term Loan and the Advances) for all such sales or dispositions shall exceed, since the business of a Borrower Party Closing Date, (which assets shall be consistent with the assets utilized by such Borrower Party A) $500,000 in the ordinary course case of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, sales or dispositions and (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful $1,000,000 in the business case of such Borrower Party and proceeds of insurance or condemnation awards (C) shallother than sales or dispositions of Inventory, upon the Administrative Agent’s request following the occurrence and Equipment or Real Property or insurance proceeds or condemnation awards with respect to Inventory, Equipment or Real Property as to which, except as otherwise provided in SECTION 6.7(B), no minimum amount will apply), PROVIDED, that, except during the continuance of an Event of Default, proceeds from any insurance policy or condemnation award with respect to either of the facilities located in Boca Raton, Florida shall not be required to be so applied to the extent that such proceeds are used to replace, repair or restore the applicable facility located in Boca Raton, Florida if (i) the amount of proceeds received in respect of such insurance policy or an amount equal condemnation award is less than $2,000,000, (ii) Borrower delivers a certificate to Agent within 30 days after the date of such Net Cash Proceeds loss, destruction or taking stating that such proceeds shall be appliedused to replace, repair or restore the applicable facility located in Boca Raton, Florida within a period specified in such certificate not to exceed 180 days after the receipt of such proceeds (which certificate shall set forth estimates of the proceeds to be so expended) and (iii) such proceeds are deposited in a DDA subject to a Control Agreement. If all or any portion of such proceeds not so applied to the prepayment of the Obligations as set forth above Term Loan and Advances in Section 2.6(baccordance with this SUBCLAUSE (IV) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during used in accordance with the Net Cash Proceeds Reinvestment Periodpreceding sentence within such 180 day period, an amount equal to such remaining Net Cash Proceeds is required to portion shall be applied to prepay the Obligations Term Loan and Advances in accordance with Section 2.6(bthis SUBCLAUSE (IV) immediately upon on the expiration last day of such specified period. Borrower shall not be obligated under this Agreement and the Net Cash Proceeds Reinvestment Periodother Loan Documents to replace, repair or restore the applicable facility located in Boca Raton, Florida to the extent, but only to the extent, that the proceeds received in respect of any insurance policy or condemnation award are applied to the Term Loan or the Advances. Nothing contained in this SUBCLAUSE (IV) shall permit Borrower to sell or otherwise dispose of any property or assets other than in accordance with SECTION 7.4.
(ivv) One hundred percent (100%) Upon the receipt by Borrower of the any Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or Borrower shall prepay the outstanding principal of the Term Loan and the Advances in accordance with Section 2.4(d) below in an amount equal to 100% of such Extraordinary Receipts shall be appliedReceipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(vi) Within ten (10) Business Days of delivery to the prepayment Agent of each of the Obligations as set forth above in Section 2.6(baudited annual financial statements pursuant to SECTION 6.3(B) and (b) deliver a certificate from the Borrower or, if such financial statements are not delivered to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of on the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts statements are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied delivered pursuant to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is SECTION 6.3(B), ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial such statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered to Agent pursuant to Section 7.1(b) (the “ECF Prepayment Date”SECTION 6.3(B), the Borrower Parties shall make a mandatory prepayment of the Obligations in pay to Agent an amount equal to fifty percent (50%) 25% of the Excess Cash Flow for the Fiscal Year covered by such fiscal quarter financial statements, to be applied in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(cSECTION 2.4(D).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Nabi Biopharmaceuticals)
Mandatory Prepayments. (i) [Reserved].Any prepayment under this Section 2.3 shall be applied first to accrued interest, second to any applicable Prepayment Fee, third to installments of principal in the inverse order of their maturities and fourth to any expenses and/or damages for which Purchaser may be entitled. The amount of any such mandatory prepayment may not be reborrowed by the Company. The Company shall make mandatory prepayments in each of the following circumstances:
(iia) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn Public Offering by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party Company or any of its Subsidiaries of any of the Company's or any of its Subsidiaries' debt securities, the Company shall prepay the Senior Obligations in an amount equal to the lesser of the (i) net proceeds of any such Public Offering received by the Company or (ii) the aggregate amount of all Senior Obligations. Any such prepayment to be paid made within five (5) Business Days of receipt thereof by the Borrower Parties of such net proceeds. No Prepayment Fee shall be payable with respect to the Lenders as a mandatory prepayment under this Section 2.3(a) as a result of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event occurrence of Default shall have occurred and be continuing a Public Offering or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), a Qualified Liquidation Event.
(b) If the Company or any of its Subsidiaries shall sell or otherwise dispose of (dother than as permitted by Section 6.8 or Section 7.3) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on any property or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts properties in the business of a Borrower Party and identifies aggregate amount exceeding $25,000, then the long-term assets which Company shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Senior Obligations in an amount equal to fifty percent the lesser of (50%i) the aggregate net cash proceeds of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(bsales or other dispositions or (ii) the aggregate amount of all Senior Obligations (including any applicable Prepayment Fee). Each , such prepayment shall to be accompanied by a certificate signed by an Authorized Signatory made on the date of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentclosing of such transaction.
(vic) Any payments due In the event of any sale or other disposition of all or substantially all of the stock or assets of the Company or any of its Subsidiaries in a single transaction or series of transactions, the Company shall prepay the Senior Obligations in an amount equal to the lesser of (i) the aggregate net cash proceeds of such sales or dispositions or (ii) the aggregate amount of all Senior Obligations (including any applicable Prepayment Fee), any such prepayment to be made on the date of the closing of such transaction. No Prepayment Fee shall be payable with respect to a mandatory prepayment under this Section 2.6(c2.3(c) shall be accompanied by all accrued interest on the principal amount as a result of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters occurrence of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)a Qualified Liquidation Event.
(viid) The Borrower shall give prior written notice In the event of any prepayment required under this Section 2.6(c) Change in Control, the Company shall prepay the Senior Obligations in an amount equal to the Administrative Agent as far aggregate amount of all Senior Obligations, such prepayment to be made on the date of the occurrence of such Change of Control.
(e) In the event the Company or any of its Subsidiaries becomes a party to any acquisition, merger or consolidation, the Company shall prepay the Senior Note in advance thereof as is reasonably practicable an amount equal to the aggregate amount of all Senior Obligations, such prepayment to be made within five (and in any event at least three 5) Business Days prior theretoof the date of any such acquisition, merger or consolidation.
(f) In the event ▇▇▇▇▇ ▇▇▇▇▇ is no longer the President or Chief Executive Officer of the Company and there is no replacement reasonably satisfactory to Purchaser within (90) days of such event (except that until a Purchaser's Senior Note has been paid in full, such replacement must be reasonably satisfactory to such Purchaser), and, except with respect to prepayments required pursuant to clause (v) above, deliver the Company shall repay the Senior Note in an amount equal to the Administrative Agent at least three aggregate amount of all Senior Obligations, such prepayment to be made within five (5) Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount end of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderninety (90) day period.
Appears in 1 contract
Mandatory Prepayments. (iA) [Reserved]Borrower shall immediately prepay the outstanding principal amount of the Term Loan B in the event that the Revolver Commitment is terminated and accelerated for any reason prior to its scheduled termination under Section 3.3(a).
(iiB) In the event that, after the Agreement Date, Immediately upon any voluntary or involuntary sale or disposition by Borrower Party or any Subsidiary of a its Subsidiaries of property or assets (other than in accordance with Section 7.4), Borrower Party shall prepay the outstanding Obligations in accordance with Section 2.4(c)(iii) in an amount equal to 100% of the net cash proceeds received by such Person in connection with such sales or dispositions. Nothing contained in this Section 2.4(c)(ii)(B) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(C) Immediately upon the receipt by Borrower or any of its Subsidiaries of any Extraordinary Receipts in any one or series of related events, Borrower shall prepay the outstanding Obligations in accordance with Section 2.4(c)(iii) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(D) Immediately upon the issuance or incurrence by Borrower or any of its Subsidiaries of any Indebtedness other than Indebtedness referred to in Section 7.1 (a) through (i), Borrower shall prepay the outstanding Obligations in accordance with Section 2.4(c)(iii) in an amount equal to 100% of the net cash proceeds received by such Person in connection with such issuance or incurrence. Nothing contained in this Section 2.4(c)(ii)(D) shall permit Borrower or any of its Subsidiaries to issue or incur any Funded Debt Indebtedness other than Funded Debt permitted under Section 8.1in accordance with the terms and conditions of this Agreement.
(E) Upon the sale or issuance by Borrower or any of its Subsidiaries of any shares of Stock other than in connection with the Merger, one hundred percent (100%) of Borrower shall prepay the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment outstanding principal amount of the Obligations in accordance with Section 2.6(b)2.4(c)(iii) in an amount equal to 100% of the net cash proceeds received by such Person in connection therewith. Nothing contained in this Section 2.4(c)(ii)(E) shall permit Borrower or any of its Subsidiaries to issue, incur or sell any Stock other than in accordance with the terms and conditions of this Agreement.
(iiiF) One hundred percent (100%) If, on any date, the aggregate amount of all Revolving Advances, Unsecured Notes Reserve, and Letter of Credit Usage exceeds the Net Cash Proceeds from any saleBorrowing Base, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of Borrower shall immediately prepay the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the outstanding Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i2.4(c)(iii) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Periodexcess.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (a) If any Credit Party at any time or from time to time makes or agrees in writing to dispose of any Property of Operator, then (a) Borrower shall notify Agent thereof no later than five (5) Business Days prior to such proposed disposition (including the amount of the estimated Net Cash Proceeds of Sale to be received by Operator or such Credit Party in respect thereof) and (b) within three (3) Business Days after such disposition and receipt of Net Cash Proceeds of Sale, Borrower shall, absolutely and unconditionally without notice or demand, prepay the aggregate outstanding amount of the Loans in an amount equal to the lesser of (i) [Reserved]one hundred percent (100%) of such Net Cash Proceeds of Sale payable to or for the benefit of Operator in connection therewith, and (ii) the Obligations.
(iib) In If Operator shall at any time or from time to time suffer a Property Loss Event, then (a) Borrower shall notify the Agent no later than five (5) Business Days following such Property Loss Event of such event that, (including the amount of the estimated Insurance Proceeds to be received by such Credit Party in respect thereof) and (b) within three (3) Business Days after the Agreement Datereceipt of such Insurance Proceeds by or on behalf of Operator (or of Agent as the loss payee with respect thereto) in respect of any Property Loss Event, any Borrower Party shall, absolutely and unconditionally without notice or any Subsidiary demand, prepay the aggregate outstanding amount of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, the Loans in an amount equal to the lesser of (i) one hundred percent (100%) of the Net Cash Insurance Proceeds payable to or for the benefit of Operator in connection therewith, and (ii) the Obligations; provided that (x) if no Default or Unmatured Default has occurred and either (y) the Insurance Proceeds do not exceed $25,000 and Borrower delivers a certificate of an Authorized Officer of Operator to Agent on or prior to the date such Insurance Proceeds are received setting forth Operator’s intention to use or commit to use a specified amount of such proceeds to repair, replace or reinstate the affected Property within ninety (90) days thereof, or (z) the Insurance Proceeds exceed $25,000 and Borrower delivers to Agent a repair plan, a budget in relation thereto, and specifies therein a period within which such repairs or reinstatement shall be completed (collectively, a “Repair Plan”), and Agent, following its review thereof, approves the same exercising its reasonable discretion, the Insurance Proceeds shall not be required to be applied towards prepayment of the Loans. Without limiting the foregoing, upon Borrower’s or Operator’s receipt of any Insurance Proceeds in excess of $25,000, such proceeds shall be immediately paid over to Agent, pending Agent’s approval of the Repair Plan. The balance of Insurance Proceeds received by any Borrower Party and not specified for such use in such Certificate or such Subsidiary from such incurrence Repair Plan, as applicable, shall be paid within immediately applied to prepay the Loans, and any portion specified for such use in such certificate or Repair Plan, as applicable, but remaining unapplied after ninety (90) days (in the case of (y) above) or the period specified therefor in the Repair Plan (in the case of (z) above) shall be applied to prepay the Loans immediately upon the expiry of such period.
(c) Subject to Section 2.18 and beginning with the first full calendar month following the Effective Date, to the extent that Excess Cash Flow for any Excess Cash Flow Period is greater than $0.00, Borrower shall, one (1) Business Day of receipt after the relevant Excess Cash Flow Determination Date, prepay the aggregate outstanding amount of the proceeds thereof by Loans in an aggregate amount equal to 66.67% of such Excess Cash Flow and the remaining 33.33% of Excess Cash Flow shall be available to Borrower Party to make a permitted distribution to Parent pursuant to Section 6.10(b); provided that, in the Lenders as event that Excess Cash Flow is less than or equal to $0.00 on a mandatory cumulative and aggregated basis for successive Excess Cash Flow Periods, no prepayment of the Obligations Loans by Borrower shall be required under this Section 2.3(c). For the avoidance of doubt, neither Agent nor any Lender shall be required to fund any negative Excess Cash Flow, whether determined for a single Excess Cash Flow Period, for successive Excess Cash Flow Periods on a cumulative and aggregated basis or otherwise.
(d) Subject to Section 2.18, in the event that Borrower exercises the Extension Option in accordance with Section 2.6(b).
2.2, Borrower shall, one (iii1) One Business Day after the first Excess Cash Flow Determination Date on or following the Extension Effective Date, prepay the Loans in an aggregate amount equal to one hundred percent (100%) of Excess Cash Flow arising on and after the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise Extension Effective Date.
(other than with respect to the sale, transfer or disposition of assets permitted under clauses (ie) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following Upon the occurrence and during the continuance of an Event of any Default, be applied Borrower shall, one (or 1) Business Day after each Excess Cash Flow Determination Date, prepay the Loans in an aggregate amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One one hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or Excess Cash Flow arising prior to and upon the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt occurrence of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence Default and during the continuance of an Event of such Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
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Mandatory Prepayments. (i) [Reserved]On the Maturity Date, upon a Change of Control, upon the occurrence and during the continuation beyond all applicable grace or cure periods of an Event of Default (as hereinafter defined) or if the Company or any Significant Affiliate consummates project financing through or by means of the Program of $30,000,000 or more (subject to project or Program restrictions), then the Company shall (a) prepay all of the Notes for an amount equal to the then outstanding principal balance plus all accrued but unpaid interest thereon, and (b) pay in full all of the other obligations owing to Agent and Purchaser under or in connection with this Agreement, which amount shall be calculated on the date of prepayment and be payable in cash on demand in immediately available funds on such date.
(ii) In addition to the event thatforegoing, after if the Agreement DateCompany, whether in a single transaction or a series of transactions: (a) receives proceeds from any Borrower Party government grants and credits, including the California Energy Commission grant provided under the California Producer Incentive Program; (b) sells or transfers any Subsidiary of a Borrower Party shall incur any Funded Debt Property (other than Funded Debt as permitted under Section 8.15.3(ii) of this Agreement); (c) incurs any Indebtedness other than Permitted Indebtedness; (d) sells or issues any Capital Stock (excluding sales or issuances in connection with the Closing for the purpose of raising not less than $2,000,000 to the extent not funded with Subordinated Debt pursuant to the Subordinated Loan Documents); or (e) receives any property damage insurance award or any other insurance proceeds of any kind, including, without limitation, proceeds from any life insurance or business interruption insurance (unless reinvested in productive assets of a kind then used or usable in the Company’s business, and, within one hundred eighty (180) days after such occurrence, enters into a binding commitment to make such reinvestment (which reinvestment shall be made within two hundred seventy (270) days after such occurrence); the Company shall apply, or cause to be applied, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the net proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, Notes for an amount equal to such remaining Net Cash Proceeds is required the then outstanding principal balance plus all accrued but unpaid interest thereon and all other obligations owing to be applied to prepay the Obligations Agent and Purchaser under or in accordance connection with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries this Agreement, which amount shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing calculated on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of prepayment and be payable in cash on demand in immediately available funds on such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaiddate. Notwithstanding anything to the contrary contained herein, failure all prepayments pursuant to provide this Section 4.6 shall be applied in the following order of priority to the payment of: (i) all then unpaid fees and expenses of Agent and Purchasers under the Notes and other Transaction Documents; (ii) accrued and unpaid interest on the Notes (in such notice hereunder order as Agent shall not preclude determine in its sole discretion); and (iii) the Borrower’s ability to make such prepayment hereunderunpaid principal balance of the Notes.
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Mandatory Prepayments. (a) Unless the Required Prepayment Lenders shall otherwise agree:
(i) [Reserved].
(ii) In the event that, after the Agreement Date, if any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Non-Recourse Debt permitted under by Section 8.17.2(g)(i) shall be incurred, one hundred percent (100%) then on the date of such incurrence, the Loans shall be prepaid by an amount equal to the amount of the Net Cash Proceeds received by of such incurrence, as set forth in Section 2.10(c);
(ii) if any Borrower Party or such Subsidiary from such incurrence Sale and Leaseback Transaction shall be paid within one (1) Business Day consummated in respect of receipt any fee-owned property owned by the Borrower or any Class I Restricted Subsidiary on the Closing Date, or acquired by the Borrower or any Class I Restricted Subsidiary after the Closing Date in a transaction of the proceeds thereof type described in Section 7.5(f) in exchange for any real property listed on Schedule 7.11, that is not Mortgaged Property, then, on the date of consummation of such transaction, unless a Reinvestment Notice shall have been delivered in respect thereof, the Loans shall be prepaid by such Borrower Party an amount equal to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) amount of the Net Cash Proceeds from of such transaction (excluding any sale, transfer, assignment or other disposition, whether voluntaryamounts subject to any such Reinvestment Notice), as a result set forth in Section 2.10(c);
(iii) if any Sale and Leaseback Transaction shall be consummated in respect of any enforcement action fee-owned property acquired by the Borrower or any member of Class I Restricted Subsidiary after the Lender Group or otherwise Closing Date (other than a property acquired after the Closing Date in a transaction of the type described in Section 7.5(f)), then, on the date of consummation of such transaction, unless (x) if, on the date of consummation of such transaction, the aggregate value of all leasehold and fee-owned real property of the Borrower and the Subsidiary Guarantors subject to a Mortgage (valued in accordance with Schedule 6.9; such value to be demonstrated to the reasonable satisfaction of the Administrative Agent) is not equal to or greater than 370% of the Assumed Loan Amount, the Borrower shall have agreed to furnish to the Administrative Agent, within 45 days after the date of consummation of such transaction, a leasehold mortgage with respect to such real property, together with any certificates and documents reasonably requested by the Administrative Agent and (y) a Reinvestment Notice shall have been delivered in respect thereof, the Loans shall be prepaid by an amount equal to the amount of the Net Cash Proceeds of such transaction (excluding any amounts subject to any such Reinvestment Notice), as set forth in Section 2.10(c); and
(iv) on each Reinvestment Prepayment Date, the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the salerelevant Sale and Leaseback Transaction, transfer or disposition as set forth in Section 2.10(c). The provisions of assets permitted under clauses (i) and (ii) of this Section 8.7(b)), or casualty or condemnation loss do not constitute a consent to the incurrence of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof Indebtedness by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoingParent, unless an Event of Default shall have occurred and be continuing or would result therefromHoldings, the Borrower Parties may elect to reinvest or any of its Subsidiaries not permitted by Section 7.2 or the consummation of any sale and leaseback transaction not permitted by Section 7.11.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Parent, Holdings, the Borrower or any of its Class I Restricted Subsidiaries shall receive Net Cash Proceeds from any such saleAsset Sale or Recovery Event then, transferunless a Reinvestment Notice shall be delivered in respect thereof, assignment or other disposition on the date of receipt by the Parent, Holdings, the Borrower or any of its Class I Restricted Subsidiaries of such casualty or condemnation loss of any Collateral or such other assetsNet Cash Proceeds, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior Loans shall be prepaid by an amount equal to the date any payment thereof would have been required hereunder amount of the intent to reinvest such Net Cash Proceeds (excluding any amounts subject to any such Reinvestment Notice), as set forth in similar assets for Section 2.10(c); provided, that, notwithstanding the business foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Borrower Party Reinvestment Notice shall not exceed (which assets shall be consistent with the assets utilized by such Borrower Party A) $250,000,000 in the ordinary course of its business) and identifies aggregate during the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale Facilities and (B) $50,000,000 not otherwise reinvested or receipt of insurance proceeds applied to prepay the Loans at any one time outstanding and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) on each Reinvestment Prepayment Date the Loans shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn prepaid by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.10(c). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.5.
(c) Amounts to be applied as prepayments pursuant to Section 2.10(a)(i) shall be applied) , first, to repay amounts outstanding under the Revolving Credit Facility, and second, to the prepayment of the Obligations as set forth above in Section 2.6(b) Term Loans, and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required all other amounts to be applied as prepayments pursuant to prepay the Obligations in accordance with this Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) , first, to the prepayment of the Obligations as set forth above in Section 2.6(b) Term Loans and (b) deliver a certificate from the Borrower second, to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days prepayment of the date of receipt of Revolving Credit Loans. Any such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations Revolving Credit Loans pursuant to this Section 2.10 shall not result in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory mandatory reduction of the Borrower Parties certifying the manner Revolving Credit Commitments. Amounts prepaid in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount respect of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall 2.10 may not be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)reborrowed.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
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Mandatory Prepayments. (a) Subject to Section 7.1(b) hereof, and the exceptions for reinvestments as set forth in paragraph (b) below and the Intercreditor Agreement (with respect to Revolving Credit Priority Collateral), when any Note Party either (i) [Reserved]sells or otherwise disposes of any Collateral (other than sales or other dispositions referred to in clauses (i), (ii), (iv), (vi), (vii), (viii) and (ix) of Section 7.1(b)) or (ii) receives the proceeds of or payment in respect of any property or casualty insurance claims or any condemnation proceedings with respect to any Collateral (a “Recovery Event”) (for avoidance of doubt, Collateral includes, in each such case, Real Property, unless such Real Property is an Excluded Asset) and receives net cash proceeds (i.e., gross cash proceeds less the reasonable costs of such sales or other dispositions or of collecting on or settling such insurance claim or condemnation proceeding) as the result of such sales, dispositions or Recovery Events in excess of an aggregate amount of $1,000,000 in any fiscal year, the Issuer shall repay the Notes in an amount equal to such excess, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such net cash proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or disposition otherwise prohibited by the terms and conditions hereof.
(iib) In Notwithstanding the event thatprovisions of the foregoing Section 2.5(a), after the Agreement Datein any case involving any sale, disposition or Recovery Event with respect to any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt Collateral other than Funded Debt permitted under Section 8.1Inventory or Receivables, one hundred percent (100%) so long as no Event of Default has occurred and is continuing on the date such Note Party receives the net cash proceeds of such sale or disposition or Recovery Event, the net cash proceeds of such sale, disposition or Recovery Event shall not be required to be applied as a prepayment of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within Obligations as otherwise provided in Section 2.5(a), to the extent that (x) promptly but in no event more than one (1) Business Day of following receipt of such net cash proceeds, the proceeds thereof by such Borrower Party Issuer shall (I) deliver to Agent and the Lenders as Purchasers a mandatory prepayment certificate of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) Chief Financial Officer or Controller of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise Issuer (other than with respect to the sale, transfer or disposition of assets permitted under clauses (iA) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an stating that no Event of Default shall have has occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstandingis continuing, (B) may be withdrawn by stating the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in amount of the business net cash proceeds of such Borrower Party and sale, disposition or Recovery Event eligible for reinvestment under this Section 2.5(b), (C) stating that the Note Parties wish to use such eligible net cash proceeds of such sale, disposition or Recovery Event for reinvestment as permitted under this Section 2.5(b) and (D) stating that the Note Parties shall use such eligible net cash proceeds for reinvestment within (i) 120 days or (ii) in the case of Real Property, 180 days (or such longer period as the Required Purchasers may agree in their sole discretion) (as designated in such certificate of the Chief Financial Officer or Controller of the Issuer, the “Applicable Reinvestment Period”) and (II) deposit all such net cash proceeds designated for reinvestment with Agent to be held in a segregated non-interest bearing trust account under the sole dominion and control of Agent (the “Reinvestment Account”) and (y) the Note Parties shall, upon within the Administrative Agent’s request following the occurrence and during the continuance of an Event of DefaultApplicable Reinvestment Period, be applied (or reinvest an amount equal to such Net Cash Proceeds net cash proceeds designated for reinvestment in assets of equal or greater fair market value, or otherwise replace, repair or restore any such properties or assets to be used in any Note Party’s business (and Agent shall be applieddisburse funds from the Reinvestment Account to reimburse the Note Parties for the costs and expenses of such reinvestment, replacement, repair or restoration upon submission by such Note Parties to Agent of supporting documentation reasonably acceptable to Agent), but further provided that, to the extent that the Note Parties shall not so reinvest net cash proceeds designated for reinvestment within the Applicable Reinvestment Period, then ten (10) Business Days after the expiration of such Applicable Reinvestment Period, Agent shall apply any net cash proceeds designated for reinvestment remaining in the Reinvestment Account to the prepayment of the Obligations as set forth above otherwise provided for in Section 2.6(b2.5(a).
(c) Issuer shall cause to be prepaid an aggregate principal amount of the Notes following the end of each fiscal year, beginning with the fiscal year ending on or about December 31, 2015, in an amount equal to (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period then ended minus (B) all optional prepayments of the Notes made pursuant to Section 2.4(a) during such Excess Cash Flow Period (without regard to any payment made on such Notes above par) to the extent such optional prepayments were funded with Internally Generated Cash. Each such prepayment shall be made within five (5) Business Days following delivery of the financial statements to Agent and the Purchasers referred to in and required by Section 9.6 for such fiscal year.
(d) If a Note Party or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date not permitted to be incurred or issued pursuant to Section 7.8, the Issuer shall cause to be prepaid an aggregate principal amount of Notes in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the relevant Person of such net cash proceeds.
(e) All prepayments made pursuant to this Section 2.5 shall be applied to the remaining scheduled installment of principal on the Notes pursuant to Section 2.3 in direct order of maturity.
(f) Each Purchaser may reject all or a portion of its pro rata share of any mandatory prepayment to be made pursuant to clauses (a) and (bc) deliver above (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a certificate from “Rejection Notice”) to Agent and the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of Issuer no later than 5:00 p.m. two (2) Business Days after the date of such sale or Purchaser’s receipt of insurance proceeds (notice from the “Net Cash Proceeds Reinvestment Period”)Issuer regarding such prepayment. Each Rejection Notice from a given Purchaser shall specify the principal amount of the mandatory prepayment of Notes to be rejected by such Purchaser. If a Purchaser fails to deliver a Rejection Notice to Agent and the Issuer within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Notes to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Note. Any Declined Proceeds shall be offered by the Issuer to the extent Purchasers not so declining such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations prepayment on a pro rata basis in accordance with Section 2.6(b) immediately upon the expiration amount of the Net Cash Notes held by such Purchaser (with such non-declining Purchasers having the right to decline any prepayment with Declined Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof such offer by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(bIssuer). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to To the extent such Extraordinary Receipts are not fully reinvested during non-declining Purchasers elect to decline their pro rata share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by the Extraordinary Receipts Reinvestment Period, an amount equal to Issuer (such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30Declined Proceeds, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment DateRetained Declined Proceeds”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(iib) In Subject to the event thatpayment of the amounts described in Section 2.7, after the Agreement Date, if any Indebtedness shall be incurred by Borrower Party or any Subsidiary of a Borrower Party shall incur thereof (excluding any Funded Debt other than Funded Debt permitted under Indebtedness incurred in accordance with Section 8.17.2), one hundred percent (an amount equal to 100%) % of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from thereof shall be applied on the date of such incurrence shall be paid within one (1) Business Day or, if later, date of receipt of toward the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations Loans and other amounts as set forth in accordance with Section 2.6(b2.6(f).
(iiic) One hundred percent If on any date Borrower or any Subsidiary thereof shall receive Net Cash Proceeds from any Asset Sale (excluding an Asset Sale constituting the issuance of Capital Stock issued by Borrower) or Recovery Event, then, an amount equal to 100%) % of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by receiving such proceeds, towards the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations Loans and other amounts as set forth in accordance with Section 2.6(b2.6(f). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, ; provided that if the Borrower Parties may elect shall deliver to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior a certificate of a Responsible Officer to the date any payment effect that the Borrower intends to apply such Net Cash Proceeds from such event (or a portion thereof would have been required hereunder specified in such certificate), within one hundred eighty (180) days after receipt of such Net Cash Proceeds to acquire (or, in the intent case of a Recovery Event, replace or rebuild) assets (excluding cash or Cash Equivalents) to reinvest such Extraordinary Receipts be used in the business of Borrower (it being understood and agreed that such proceeds may not be used to pay for or to offset any expenses, liabilities or any payroll obligations), and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be required pursuant to this clause (c) with the amount Net Cash Proceeds specified on such certificate; provided further that (i) any such Net Cash Proceeds intended to be reinvested shall be held in a Borrower Party and identifies the long-term assets which shall constitute Deposit Account that is subject to a Control Agreement until such reinvestment within 180 days of the date of receipt of such proceeds is made and (ii) confirm that such Extraordinary Receipts have been deposited into to the extent any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a Blocked Accountnotice of reinvestment election, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to any such Extraordinary Receipts non-reinvested Net Cash Proceeds shall be appliedapplied within five (5) Business Days after such determination that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested to the prepayment of the Obligations Loans as set forth above in Section 2.6(b) and this clause (b) deliver c); provided, further, that a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall only be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) required to the contraryextent such Net Cash Proceeds exceeds $1,000,000 in a Fiscal Year, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant and only to the terms hereof, other than mandatory prepayments required under clause (v) extent of this Section 2.6(c)such excess.
(viid) [Reserved].
(e) [Reserved].
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 shall be applied to the Loans on a pro rata basis, in each case in accordance with Section 2.10(b). Each prepayment of the Loans under this Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) deliver to the Administrative Agent as far in advance thereof as is reasonably practicable (and the Administrative Agent shall promptly notify each Lender)
(i) a written notice of each prepayment of the Loans in any event at least three Business Days prior thereto)whole or in part pursuant to this Section 2.6 by noon New York City time, and, except not less than (x) with respect to prepayments required pursuant to clause by Section 2.6(a) and (vc), five (5) above, deliver Business Days (or such shorter period reasonably acceptable to the Administrative Agent at least three Business Days Agent) prior to making the date such prepayment shall be made or (y) with respect to prepayments required by Section 2.6(b), on the date such prepayment shall be made (each, a “Prepayment Date”), which such notice shall set forth (x) the Prepayment Date, (y) the aggregate amount of each such prepaymentprepayment and (z) the applicable clause under this Section 2.6 that such prepayment relates to, and (ii) a certificate signed by an Authorized Signatory of the Borrower a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Navan, Inc.)
Mandatory Prepayments. (a) Immediately upon receipt by the Borrower or any of its Subsidiaries of any proceeds in an aggregate amount exceeding $500,000 in any Fiscal Year from (A) any sale or disposition by the Borrower or any of its Subsidiaries of any of its assets, or (B) any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the Obligations in an amount equal to all such excess proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrower in connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations (i) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to proceeds from the salesales of inventory in the ordinary course of business, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), so long as no Default or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing at the time of the receipt of proceeds pursuant to this subsection (a) or would result therefromat the proposed time of the reinvestment of such proceeds, the Borrower Parties may elect shall have the option, upon written notice to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent Agent, directly or (x) in writing on the case of proceeds received by a Loan Party, through one or prior to more of its Subsidiaries that is a Loan Party or (y) in the date any payment thereof would have been required hereunder case of the intent proceeds received by a Subsidiary that is not a Loan Party, through one or more of its Subsidiaries, to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party proceeds within three hundred sixty-five (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business365) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment thereof in assets of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful general type used in the business of the Borrower and its Subsidiaries so long as such Borrower proceeds received by a Loan Party and (C) shall, upon the Administrative Agent’s request following the occurrence and are held in Controlled Accounts at SunTrust Bank or other accounts subject to Control Account Agreements until reinvested; provided that any funds are committed to be reinvested during the continuance initial three hundred sixty-five (365) days after the receipt of such proceeds but the reinvestment has not yet occurred by the end of such period, the Borrower and its Subsidiaries shall have an Event additional one hundred eighty (180) day period to consummate such reinvestment; provided, further, that if any such proceeds have not been reinvested at the end of Defaultsuch additional period, be applied (or an amount equal to such Net Cash Proceeds the Borrower shall be applied) to the prepayment of promptly prepay the Obligations as set forth above required by this Section 2.12(a). Any such prepayment shall be applied in Section 2.6(baccordance with subsection (d) and of this Section.
(b) deliver a certificate from No later than the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of Business Day following the date of such sale or receipt of insurance proceeds (by the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries of any proceeds from any issuance of Indebtedness by the Borrower or any of its Subsidiaries, the Borrower shall prepay the Obligations in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrower in connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations with respect to proceeds of Indebtedness permitted under Section 7.1. Any such prepayment shall be paid within applied in accordance with subsection (d) of this Section.
(c) Commencing with the Fiscal Year ending December 31, 2020, no later than five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited Borrower’s annual audited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) such Fiscal Year are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”5.1(a), the Borrower Parties shall make a mandatory prepayment of prepay the Obligations in an amount equal to fifty percent (50%i) of the Applicable ECF Percentage multiplied by Consolidated Excess Cash Flow for minus (ii) voluntary repayments of the Loans (to the extent such fiscal quarter repayment is not financed with the proceeds of Indebtedness) pursuant to Section 2.11 (excluding repayments of Revolving Loans except to the extent the Revolving Commitments are permanently reduced in connection with such repayments) actually made during the applicable Fiscal Year or prior to the date that such prepayment is due and payable in respect of the then-existing Fiscal Year (but without duplication of any voluntary prepayment applied to reduce Consolidated Excess Cash Flow in any other Fiscal Year). Any such prepayment shall be applied in accordance with Section 2.6(b)subsection (d) of this Section. Each Any such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties a Responsible Officer certifying in reasonable detail the manner in which Consolidated Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(vid) Any payments due under prepayments made by the Borrower pursuant to subsection (a), (b) or (c) of this Section 2.6(c) shall be accompanied by all accrued interest on applied as follows: first, to the Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to the principal amount balance of the Loans being prepaid Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments installments of the Term Loans in the inverse order of maturity; third, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; fourth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments; and fifth, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to this clauses second through fifth above, unless an Event of Default has occurred and is continuing and the Required Revolving Lenders so request.
(e) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.6(c) 2.8 or otherwise, the Borrower shall immediately repay the Swingline Loans and the 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 shall be applied first as follows: first, to the Swingline Loans to the full extent thereof; second, to the Base Rate Advances Loans to the full extent thereof; and then third, to the Eurodollar Advances in direct order Loans to the full extent thereof. If, after giving effect to prepayment of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow all Swingline Loans and Revolving Loans, the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in Cash Collateralize its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except reimbursement obligations with respect to prepayments required pursuant all Letters of Credit in an amount equal to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date excess plus any accrued and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderunpaid fees thereon.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is Within ten (10) Business Days after the earlier consummation of any sale or other disposition of Property (Aincluding the sale or other disposition of Receivables) by the Borrower or any Restricted Subsidiary if the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for such sale or other disposition, together with the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for all other such sales or other dispositions consummated during the period of twelve consecutive months immediately preceding the consummation of such sale or other disposition, exceeds $25,000,000, the Borrower shall deliver an Officer’s Certificate to the Administrative Agent and the Lenders (notifying the Administrative Agent and the Lenders thereof and certifying the amount of Net Cash Proceeds received from such sales or other dispositions during such period). Unless within five (5) Business Days after receipt of such Officer’s Certificate the Administrative Agent, on behalf of the Required Lenders, shall have notified the Borrower of the Required Lenders’ election to forego prepayment, then on the date that is seven (7) Business Days after the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with Borrower shall have delivered such Officer’s Certificate to the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) Administrative Agent and the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), Lenders the Borrower Parties shall make a mandatory prepayment of the Obligations Loans in an amount equal to fifty percent the Ratable Share of the amount of Net Cash Proceeds certified in such Officer’s Certificate (50%or such lesser principal amount as shall then be outstanding), at 100% of the principal amount so prepaid. Notwithstanding the foregoing, (i) up to 100% of the Net Cash Proceeds of such sales or other dispositions with respect to which the Borrower shall have given the Administrative Agent written notice (set forth in the applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (a)) of Excess its intention to repair or replace the Property subject to any such sale or other disposition or invest such Net Cash Flow Proceeds in the purchase of Property (other than securities, unless those securities represent equity interests in an entity that becomes a Guarantor or an Unrestricted Subsidiary permitted hereunder (and provided that if such Guarantor or Unrestricted Subsidiary is a newly formed Person, such Person shall promptly use the portion of the Net Cash Proceeds received by it for such fiscal quarter the sale of its equity interests in accordance with Section 2.6(border to purchase Property to be used by it in its business). Each such prepayment shall ) to be accompanied used by a certificate signed by an Authorized Signatory one or more of the Borrower Parties certifying or the manner Guarantors in which Excess Cash Flow and the resulting prepayment were calculatedtheir businesses (such repair, which certificate replacement or investment referred to as a “Reinvestment”) within six (6) months following such sale or other disposition, shall not be in form and substance satisfactory subject to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount provisions of the Loans being prepaid first two sentences of this clause (a) unless and applied to the extent that such applicable period shall have expired without such repair, replacement or investment having been made, and (ii) only the Net Cash Proceeds from sales or other dispositions of Property (including the sale or other disposition of Receivables) with a fair market value of the consideration received therefor in excess of $25,000,000 (above and beyond the manner set forth in Section 2.10 and fair market value of the consideration of the dispositions of the Property with respect to which the Net Cash Proceeds shall have been subject to Reinvestment) shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters provisions of the applications set forth above, prepayments first two sentences of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(ca).
(viib) The Any prepayments made by the Borrower pursuant to Section 2.12(a) above shall give prior written notice of any prepayment required under this Section 2.6(c) to be applied by the Administrative Agent as far in advance thereof follows: first to repay Term Loans on a pro rata basis as is reasonably practicable (and in any event at least three Business Days prior thereto)to each of Term Loan A, Term Loan A-1, Term Loan A-2 and, except with respect to prepayments required pursuant to clause (v) above, deliver unless otherwise provided in the Incremental Facility Amendment applicable to the Administrative Agent at least three Business Days prior related Incremental Term Loan, each Incremental Term Loan (with the application of such prepayment to making be, as to each of Term Loan A, Term Loan A-1, Term Loan A-2 and Incremental Term Loan, to the remaining scheduled principal installments owing in respect of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.Loan under Section 2.9(d),
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
Subject to the proviso contained in this subsection (iia), promptly (and in any event, within three (3) In Business Days ) after receipt by the event that, after the Agreement Date, any Borrower Party or any Subsidiary Loan Party of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by of any Asset Sale or Recovery Event, the Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of prepay the Obligations in accordance with Section 2.6(b).
(iii2.12(e) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds Proceeds; provided that the Borrower shall not be applied) required to the prepayment of prepay the Obligations as set forth above with respect to (i) proceeds from the Asset Sales in the ordinary course of business, (ii) proceeds from other Asset Sales permitted under Section 2.6(b7.6 (other than Section 7.6(i)) and (biii) deliver a certificate from proceeds of any sale or disposition by the Borrower to or any Loan Party of any of its assets, or proceeds from casualty insurance policies or eminent domain, condemnation or similar proceedings that in the Administrative Agent that states that the Borrower Parties have case of this clause (iii) are reinvested such Net Cash Proceeds in assets then used or usable in the business of the Borrower and the Loan Parties within one hundred eighty (180) days following receipt thereof or in which the Borrower or such Loan Party has entered into a commitment to reinvest such proceeds within one hundred eighty (180) days following receipt thereof and such proceeds are reinvested in assets or used or usable in the business of the Borrower and the Loan Parties within two hundred seventy (270) days following receipt thereof; provided, further, that if such 180-day period or 270-day period, as applicable, expires without the Borrower or such Loan Party reinvesting all or any portion of such proceeds, promptly (and in any event within 180 days three (3) Business Days) thereof, the Borrower or such Loan Party shall prepay the Obligations in an amount equal the amount not used or all such Net Cash Proceeds. Notwithstanding anything herein to the contrary, any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings that are required to be turned over to “Lessor” (as such term is defined in the Existing Master Lease) or otherwise applied pursuant to Article XI of the Existing Master Lease shall not be subject to this Section 2.12.
(b) No later than the Business Day following the date of such sale receipt by the Borrower or receipt any Loan Party of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”of any issuance of Indebtedness (other than Indebtedness permitted under Section 7.1). If and to , the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to Borrower shall prepay the Obligations in accordance with Section 2.6(b2.12(e) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be appliedNet Cash Proceeds.
(c) to Within one hundred and twenty (120) days after the prepayment end of each Fiscal Year commencing with the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from Fiscal Year ending June 30, 2016, the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to shall prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an aggregate amount equal to fifty percent (x) 50%) % of Consolidated Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory Fiscal Year if the Consolidated Leverage Ratio is greater than or equal to 2.50:1.0 as of the Borrower Parties certifying the manner in which end of such Fiscal Year, (y) 25% of Consolidated Excess Cash Flow for such Fiscal Year if the Consolidated Leverage Ratio is less than 2.50:1.0 but greater than or equal to 1.50:1.0 as of the end of such Fiscal Year and (z) 0% of Consolidated Excess Cash Flow for such Fiscal Year if the resulting prepayment were calculatedConsolidated Leverage Ratio is less than 1.50:1.0 as of the end of such Fiscal Year, which certificate shall be in form and substance satisfactory to each case minus the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal aggregate amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, voluntary prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)during such Fiscal Year.
(viid) The On or before June 1, 2015, the Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to prepay the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed Term Loans by an Authorized Signatory amount equal to that portion of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans not used to either (x) refinance the Existing Credit Agreement and pay fees and expenses in connection therewith or (y) fund the Tender Offer and pay fees and expenses in connection therewith.
(e) Any prepayments made by the Borrower pursuant to Sections 2.12(a), (b), (c) or (d) above shall be prepaid. Notwithstanding anything applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the contrary hereinLenders and the Issuing Bank based on their respective Pro Rata Shares of such fees and expenses; third, failure to provide interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective Pro Rata Shares of such notice hereunder interest and fees; fourth, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied pro rata to the principal installments of the Term Loans; fifth, to the principal balance of the Swing Line Loans, until the same shall have been paid in full, to the Swingline Lender, sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments and seventh, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not preclude be permanently reduced by the Borrower’s ability amount of any prepayments made pursuant to make clauses fifth through seventh above, unless a Default or an Event of Default has occurred and is continuing and the Required Revolving Lenders so request.
(f) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, as reduced pursuant to Section 2.8 or otherwise, the Borrower 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 hereundershall be applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to the full extent thereof, and finally to 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 Commitments, the Borrower shall Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any accrued and unpaid fees thereon.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) In the event that, after and on each occasion that any Net Proceeds are received by the Agreement Date, any Borrower Party or any Subsidiary of a Borrower other Loan Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result respect of any enforcement action by any member of Prepayment Event, (x) the Lender Group or otherwise (other than Borrower shall furnish the Administrative Agent with respect written notice thereof pursuant to the sale, transfer or disposition of assets permitted under clauses (iSection 2.7(c) and (iiy) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by of such Net Proceeds, Uniti – Bridge Loan and Security Agreement #97751373v29 the Borrower Parties shall pay to the Lenders as a mandatory prepayment Administrative Agent, in respect of the Obligations principal of the Loans, for the ratable benefit of the Lenders:
(i) in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an case of a Prepayment Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under described in clause (a), (b) or (d) of the definition thereof, so long as an aggregate amount equal to 100% of such Net Proceeds; provided that, with respect to this clause (i), if the Borrower Parties or any other Loan Party invests (a)(ior commits to invest) notify the Administrative Agent in writing on Net Proceeds from such Prepayment Event (or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment portion thereof) within 180 days of the date of three months after receipt of such proceeds and Net Proceeds by the Borrower or such other Loan Party (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Accountincluding pursuant to any permitted acquisition, which Extraordinary Receipts when so deposited (A) shall constitute Collateralcapital expenditures, securing acquisition of intellectual property and/or other investments permitted hereunder), then, at the payment option of the Obligations then outstandingBorrower, no prepayment shall be required pursuant to this clause (Bi) may be withdrawn by in respect of such Net Proceeds in respect of such Prepayment Event (or, the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business portion of such Borrower Party and (CNet Proceeds, if applicable) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and except to the extent of the amount of any such Extraordinary Receipts are Net Proceeds therefrom that have not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required been so invested (or committed to be applied invested) by the end of such three-month period (or if committed to prepay be so invested within such three-month period, have not been so invested within three months after the Obligations in accordance with Section 2.6(b) immediately upon the expiration end of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(binitial three-month period), or (B) the date on at which such financial statements were time a prepayment shall be required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation 100% of the amount of such prepayment. Each Net Proceeds that have not been so invested (or committed to be invested); provided, further that (x) the Borrower may elect to deem expenditures that otherwise would be permissible investments that occur prior to receipt of the Net Proceeds from such Prepayment Event to have been invested in accordance with the provisions hereof (it being agreed that such deemed expenditure shall have been made no earlier than the earliest of (A) notice of such intended Prepayment Event, (B) execution of a definitive agreement for such Prepayment Event (if applicable) and (C) consummation of such Prepayment Event) and (y) for the avoidance of doubt, during such reinvestment period, notwithstanding any further prepayment shall specify obligations arising from this clause (i), the prepayment date and Borrower may, in its sole discretion, utilize such Net Proceeds for purposes not otherwise prohibited by this Agreement; and
(ii) in the principal case of a Prepayment Event described in clause (b) of the definition thereof, an aggregate amount equal to 100% of the amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderNet Proceeds.
Appears in 1 contract
Sources: Bridge Loan and Security Agreement (Uniti Group Inc.)
Mandatory Prepayments. (i) [Reserved].
(iia) In the event thatof a reduction in the Fair Market Value of Eligible Inventory (other than due to a Casualty Loss) resulting in Borrower's falling out of compliance with the Asset Coverage Ratio required to be maintained on any date, then Borrower shall prepay the Loans in an amount sufficient to return Borrower to being in compliance with the Asset Coverage Ratio on such date, together with any amounts required by Section 2.18, within thirty (30) calendar days after Borrower shall become aware of such non-compliance, whether by written notice from Agent or any Lender or otherwise. In the event that any item of Eligible Inventory shall be sold or assigned by Borrower or any Special Purpose Entity, or the ownership interests (whether by stock or otherwise) of Borrower in any Special Purpose Entity owning record or beneficial title to any item of Eligible Inventory shall be sold or transferred, resulting in Borrower's falling out of compliance with the Asset Coverage Ratio required to be maintained on any date, then Borrower shall immediately prepay the Loans in an amount sufficient to return Borrower to being in compliance with the Asset Coverage Ratio on such date together with any amounts required by Section 2.18. The sale or assignment of Eligible Inventory by an Owner Trustee, or the sale or assignment of Borrower's or any Special Purpose Entity's beneficial interest in any owner trust (or nominee entity) holding title to Eligible Inventory, shall be considered a sale or assignment, as the case may be, of such Eligible Inventory by Borrower or such Special Purpose Entity, as the case may be. At Borrower's expense, Agent will, upon receipt of the prepayment, release its security interest in the Property or assets so sold, assigned or transferred so long as no Potential Event of Default or Event of Default has occurred and is continuing. In the event of a Casualty Loss resulting in Borrower's falling out of compliance with the Asset Coverage Ratio required to be maintained on any date, then Borrower shall (1) promptly provide notice of such Casualty Loss to Agent, and (2) prepay the Loans in an amount sufficient to return Borrower to being in compliance with the Asset Coverage Ratio, together with any amounts required to be paid pursuant to Section 2.18, immediately upon receipt of insurance or other proceeds with respect to such Casualty Loss but in no event later than ninety (90) days after the Agreement Datedate of such Casualty Loss.
(b) If at any time and for any reason the aggregate principal amount of the Loan(s) then outstanding to Borrower shall exceed the total Commitment (the amount of such excess, if any, being an "Overadvance"), Borrower shall immediately repay the full amount of such Overadvance, together with all interest accrued thereon and any amounts required to be paid pursuant to Section 2.18.
(c) In the event that Borrower Party conveys, sells, leases, assigns, transfers or otherwise disposes of, in one transaction or a series of transactions, all or substantially all of its business, Property or assets, whether now owned or hereafter acquired ("Asset Disposition"), Borrower shall immediately pay to Agent, together with any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under amounts required to be paid pursuant to Section 8.12.18, one hundred percent (100%) of the Net Cash Proceeds net proceeds received by any Borrower Party or such Subsidiary from such incurrence Asset Disposition, to be applied by Agent pursuant to Section 2.6, except to the extent any such proceeds are invested by Borrower in the purchase of Equipment within sixty (60) days of such Asset Disposition (unless a Potential Event of Default or an Event of Default exists on the date of such Asset Disposition or would result from such Asset Disposition, in which case the proceeds of the Asset Disposition shall be immediately paid within one (1) Business Day of by Borrower to Agent, together with any amounts required to be paid pursuant to Section 2.18, to be applied by Agent pursuant to Section 2.6). Agent will, upon receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment or confirmation of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) purchase of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntaryEquipment, as a result of any enforcement action by any member of the Lender Group case may be, release its security interest in the Property or assets so sold or otherwise (other than with disposed of at Borrower's expense so long as no Potential Event of Default or Event of Default has occurred and is continuing. With respect to the saleany prepayment under this Section 2.2.3, transfer Borrower shall provide Agent a written notice of prepayment that shall specify whether such prepayment is of Base Rate Loans, LIBOR Loans or disposition Cost of assets permitted under clauses (i) and (ii) of Section 8.7(b))Funds Rate Loans, or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless combination thereof; provided that if an Event of Default shall have occurred and be continuing or would result therefromcontinuing, Lenders shall have the Borrower Parties exclusive right to apply any and all such prepayments against the then due and owing Obligations as Lenders may elect deem advisable. Additionally, with respect to reinvest Net Cash Proceeds from any such saleprepayment under this Section 2.2.3, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as all interest on the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior amount prepaid accrued up to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of but excluding the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds prepayment shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) due and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of payable on the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If prepayment, and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to prepaid shall be applied to prepay the Obligations remaining principal installments in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct inverse order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)maturity.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. Borrower (ior, in the case of subsection (b) [Reserved].below, if DIP Lender is holding the proceeds of insurance or condemnation as additional collateral pursuant hereto or any Related Document, DIP Lender) shall make a prepayment of the DIP Loans upon the occurrence of any of the following, at the following times and in the following amounts:
(iia) In Immediately upon the event thatclosing of any sale, after the Agreement Datetransfer or other disposition by Borrower of any asset, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received cash proceeds of such sale, transfer or other disposition, net of the costs and expenses of disposition, including commissions, taxes, legal fees and expenses and other transactions costs, consented to, in writing, by any Borrower Party or such Subsidiary from such incurrence shall be paid within one DIP Lender;
(1b) Business Day of Within two (2) days after the receipt of the any insurance or condemnation proceeds thereof (or other similar recoveries) by such Borrower Party or by DIP Lender (to the Lenders extent DIP Lender is holding the insurance or condemnation proceeds as a mandatory prepayment additional collateral pursuant hereto or any Related Document) from any casualty loss incurred by Borrower or condemnation of the Obligations property, in accordance with Section 2.6(b).
(iii) One an amount equal to one hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment such insurance or condemnation proceeds (or other disposition, whether voluntary, as a result similar recoveries) net of any enforcement action by any member of the Lender Group or otherwise collection expenses;
(other than with respect to the sale, transfer or disposition of assets permitted under clauses (ic) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within Within two (2) Business Days of days after the receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assetsproceeds from the issuance of any equity interests by ▇▇▇▇▇▇▇▇, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One one hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment such proceeds, net of the Obligations costs and expenses of the transaction, including commissions, taxes, legal fees and expenses and other transactions costs, consented to, in accordance with Section 2.6(b). Notwithstanding the foregoingwriting, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or by ▇▇▇ ▇▇▇▇▇▇; and
(d) of Within two (2) days after the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such any proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business incurrence of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Periodany indebtedness by ▇▇▇▇▇▇▇▇, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty one hundred percent (50100%) of Excess Cash Flow for such fiscal quarter proceeds, net of the costs and expenses of the transaction, including commissions, taxes, legal fees and expenses and other transactions costs, consented to, in accordance with Section 2.6(b)writing, by DIP Lender. Each The proceeds of such prepayment mandatory prepayments shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory applied to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner Indebtedness as set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)1.10.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Debtor in Possession Loan Agreement
Mandatory Prepayments. (i) [Reserved]If, after giving effect to any termination or reduction of the Aggregate Maximum Credit Amounts pursuant to Section 2.06(b) or for any other reason, the total Revolving Credit Exposures exceeds the Aggregate Maximum Credit Amounts, then the Borrower shall prepay the Borrowings on the date of such termination or reduction in an aggregate principal amount equal to such excess.
(ii) In Subject to the event thatpayment priorities set forth in the DIP Orders, if any Loan Party receives any Net Cash Proceeds from the consummation, whether in a single transaction or a series of transactions, of any Disposition, including in connection with any Casualty Event, of any Loan Party’s Property (other than Net Cash Proceeds from (X) the monetization, liquidation, close-out or other similar equivalent action taken by any Loan Party in respect of any transaction arising under any Swap Agreement or (Y) the sale of Hydrocarbons in the ordinary course of business as permitted by Section 9.12), the Borrower shall immediately repay an aggregate principal amount of outstanding Borrowings (ratably to each Lender in accordance with each such Lender’s Applicable Percentage) equal to 100% of such Net Cash Proceeds (less any prepayments from such Net Cash Proceeds made pursuant to clause (i) of this Section 3.04(c)); provided that no such prepayment or repayment shall be required unless and until the aggregate amount of Net Cash Proceeds received by the Loan Parties after the Petition Date in connection with all such Dispositions and Casualty Events exceeds $250,000, and thereupon, only in respect of amounts in excess of such $250,000 exception.
(iii) Subject to the payment priorities set forth in the DIP Orders, if any Loan Party receives or realizes any Net Cash Proceeds from the monetization, liquidation, close- out or other similar equivalent action taken by any Loan Party in respect of any transaction arising under any Secured Swap Agreement Dateto which any Loan Party is a party, the Borrower shall immediately repay an aggregate principal amount of outstanding Borrowings (ratably to each Lender in accordance with each such Lender’s Applicable Percentage) equal to 100% of such Net Cash Proceeds, less any Borrower prepayments from such Net Cash Proceeds made pursuant to clause (i) of this Section 3.04(c); provided that no such prepayment or repayment shall be required unless and until the aggregate amount of Net Cash Proceeds received by the Loan Parties after the Petition Date in connection with all the transactions described in this clause (iii) exceeds $250,000, and thereupon, only in respect of amounts in excess of such $250,000 exception.
(iv) Subject to the payment priorities set forth in the DIP Orders, immediately upon the incurrence of any Debt (other than Debt permitted pursuant to Section 9.02) by any Loan Party or any Subsidiary of a their respective Subsidiaries or the receipt of any amount in respect of the Equity Interests of any Loan Party or their respective Subsidiaries, the Borrower Party shall incur repay an aggregate principal amount of outstanding Borrowings (ratably to each Lender in accordance with each such Lender’s Applicable Percentage) on the date of such incurrence or receipt equal to 100% of (i) in the case of the proceeds of any Funded Debt other than Funded Debt permitted under Section 8.1Debt, one hundred percent (100%) % of the Net Cash Proceeds received by any Borrower Party thereof or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) in the case of Section 8.7(b)), or casualty or condemnation loss amounts received in respect of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoingsuch Equity Interests, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date 100% of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodamounts.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for If, at any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)time, the Loan Parties and/or any of their respective Subsidiaries have any Excess Cash, then the Borrower Parties shall make a mandatory prepayment immediately repay an aggregate principal amount of the Obligations outstanding Borrowings (ratably to each Lender in accordance with each such Lender’s Applicable Percentage) in an amount equal to fifty percent the lesser of (50%A) of such Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory and (B) the aggregate principal amount of the Borrower outstanding Borrowings as of such date. To effectuate the payment required hereunder, the Loan Parties certifying the manner hereby authorize each Lender, in which Excess Cash Flow and the resulting prepayment were calculatedits (or its applicable Affiliate’s) capacity as a depository bank, which certificate shall be in form and substance satisfactory to to, upon written notice from the Administrative Agent, initiate debit entries to any and all accounts held by any Loan Party or any Subsidiary thereof with such bank and to debit the amount set forth in such written notice (which, for the avoidance of doubt, shall be an amount not to exceed the lesser of (i) the outstanding principal amount of the outstanding Borrowings and (ii) the amount of such Excess Cash) from such accounts. The foregoing authorizations to initiate debit entries shall remain in full force and effect, and such debits shall continue from time to time, until the Administrative Agent terminates such respective arrangement. The Borrower, for itself and the other Loan Parties and their respective Subsidiaries, acknowledges that (x) such debit entries may cause an overdraft of such accounts which may result in such bank’s refusal to honor items drawn on such accounts until adequate deposits are made to such account, (y) such bank is under no duty or obligation to initiate any debit entry for any purpose and (z) if a debit is not made, the payment required by this Section 3.04(c)(v) may be late or past due for all purposes hereunder (including, without limitation, Sections 3.02(c)(i) and 10.01(a)).
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount Each prepayment or repayment of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans Borrowings pursuant to this Section 2.6(c3.04(c) shall be applied first as follows: first, ratably to Base Rate Advances any ABR Borrowings of Loans then outstanding, and second, to any Eurodollar Borrowings of Loans then outstanding, and if more than one Eurodollar Borrowing of Loans is then outstanding, to each such Eurodollar Advances Borrowing in direct order of priority beginning with the Eurodollar Advance Borrowing with the least number of days remaining in the Interest Period maturities. Nothing applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in this Section 2.6(cthe Interest Period applicable thereto, and otherwise, (A) shall be deemed first, on a pro rata basis in accordance with each such Lender’s Applicable Percentage, to allow pay accrued and unpaid interest on, and accrued and unpaid expenses in respect of, the Borrower Parties Secured Obligations, to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement the extent due and payable in accordance with the other Loan Documents; and (B) second, on a pro rata basis in accordance with each such Lender’s Applicable Percentage, to repay any principal amounts or other Secured Obligations which have been advanced and are outstanding under the DIP Facility; and (C) third, as required by the DIP Orders. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all Each prepayment or any portion repayment of any mandatory prepayment required Borrowings pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)3.04(c) shall also permanently reduce the Aggregate Maximum Credit Amounts by the amount of such prepayment.
(vii) The Borrower shall give prior written notice Each prepayment of any prepayment required under Borrowings pursuant to this Section 2.6(c3.04(c) shall be applied ratably to the Administrative Agent as far Loans included in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required such prepaid Borrowings. Prepayments pursuant to clause (vthis Section 3.04(c) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed shall be accompanied by an Authorized Signatory of the Borrower setting forth accrued interest in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderaccordance with Section 3.02.
Appears in 1 contract
Sources: Dip Credit Agreement
Mandatory Prepayments. (a) Immediately upon receipt by Holdings or any of its Subsidiaries of any proceeds of any sale or disposition by Holdings or any of its Subsidiaries of any of its assets, or any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the Obligations in an amount equal to all such proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrower in connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations with respect to (i) proceeds from the sales of inventory in the ordinary course of business, (ii) proceeds from the sales of assets securing Indebtedness permitted under Section 7.1(b) (to the extent secured on the Closing Date), Section 7.1(c), Section 7.1(f), Section 7.1(h) or Section 7.1(p) to the extent such proceeds are required to be used, and are actually used, to repay such Indebtedness, (iii) proceeds from other asset sales permitted under Section 7.6 in an aggregate amount less than (x) $2,500,000 in any Fiscal Year and (y) $10,000,000 in the aggregate after the Closing Date and (iv) proceeds that are reinvested in assets then used or usable in the business of the Borrower and its Subsidiaries within 180 days following receipt thereof (or if the Borrower or any of its Subsidiaries has entered into and not abandoned or rejected a binding agreement to so reinvest such proceeds within 180 days following receipt thereof, such proceeds are so reinvested within 90 days after the end of such 180-day period). Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(b) In the event that Holdings or any of its Subsidiaries receives proceeds from the issuance or incurrence of Indebtedness by Holdings or any of its Subsidiaries that is not permitted under Section 7.1, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) the receipt of such proceeds by Holdings or its applicable Subsidiary, apply an amount equal to 100% of such proceeds, net of all fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith, to prepay the Obligations in accordance with subsection (d) of this Section (for the avoidance of doubt, it is understood and agreed that the making of such prepayment shall not cure or be deemed to cure the Event of Default resulting from the issuance or incurrence of such Indebtedness). In the event that Holdings or any of its Subsidiaries receives proceeds from the issuance or incurrence of Indebtedness that constitutes Incremental Term Loans or Revolving Loans in respect of Incremental Revolving Commitments, in each case incurred to refinance all or any portion of the Term Loans, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) the receipt of such proceeds by Holdings or its applicable Subsidiary, apply an amount equal to 100% of such proceeds, net of all fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith, to prepay the outstanding principal amount of the relevant Term Loans and, thereafter, to prepay the Obligations in accordance with subsection (d) of this Section.
(c) [Reserved].
(iid) In Any prepayments made by the event that, after the Agreement Date, any Borrower Party pursuant to subsection (a) or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%b) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence this Section shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party applied as follows: first, to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following fees and reimbursable expenses then due and payable pursuant to any of the occurrence Loan Documents; second, to all reimbursable expenses of the Lenders and during all fees and reimbursable expenses of the continuance Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, unless otherwise provided in the applicable Incremental Commitment Joinder, to the principal balance of any then outstanding Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of such Term Loans, and applied to installments of such Term Loans on a pro rata basis (including, without limitation, the final payment due on the Maturity Date); fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments; and seventh, to Cash Collateralize the Letters of Credit in an Event amount in cash equal to the LC Exposure as of Defaultsuch date plus any accrued and unpaid fees thereon.
(e) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, be applied (as reduced pursuant to Section 2.8 or otherwise increased pursuant to Section 2.23, the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b)2.19. Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory applied as follows: first, to the Swingline Loans to the full extent thereof; second, to the Revolving Loans that are Base Rate Loans to the full extent thereof; and third, to the Revolving Loans that are SOFR Loans to the full extent thereof. If, after giving effect to prepayment of all Swingline Loans and Revolving Loans, the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower Parties certifying the manner shall Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in which Excess Cash Flow an amount equal to such excess plus any accrued and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentunpaid fees thereon.
(vif) Any payments If, at any time that the Total Leverage Ratio for the most recently ended Test Period exceeds 2.75:1.00, the Revolver Availability is less than $50,000,000 (other than solely as a result of Agent Advances), the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to the amount necessary to cause the Revolver Availability (without giving effect to Agent Advances) to be $50,000,000, together with all accrued and unpaid interest on such amount and any amounts due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable 2.19. Each such prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first as follows: first, to the Swingline Loans to the full extent thereof; second, to the Revolving Loans that are Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) Loans to the contraryfull extent thereof; and third, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) Revolving Loans that are SOFR Loans to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderfull extent thereof.
Appears in 1 contract
Sources: Credit Agreement (PACS Group, Inc.)
Mandatory Prepayments. (a) Subject to Section 5.12, if on any date the Aggregate Outstanding Extensions of Credit exceeds the Revolving Credit Commitments, the Borrower shall immediately prepay the Revolving Credit Loans and/or cash collateralize or replace Letters of Credit in an amount equal to the amount of such excess.
(b) The Borrower shall prepay the Loans and reduce the Commitments in an amount equal to (i) [Reserved].
100% of the Net Proceeds from the termination of any pension plans of the Borrower or any Subsidiary (including, without limitation, the Plan Termination); PROVIDED, that the Borrower may retain and retire shares of Capital Stock of the Borrower held as assets of the Plan that is subject of the Plan Termination to the extent that the Net Proceeds from the Plan Termination otherwise applied to prepayment of the Loans is at least $10,000,000, (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) % of the Net Cash Proceeds received by of any Borrower Party sale or such Subsidiary from such incurrence shall be paid within one issuance of debt securities (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(bother than Replacement Subordinated Debt).
, (iii) One hundred percent (100%) % of the Net Cash Proceeds from of any sale or issuance of any equity securities, in either case by the Borrower or any Subsidiary, whether in a public offering, a private placement or otherwise (other than issuances of equity securities pursuant to employee benefit plans issued in the ordinary course of business) and (iv) 100% of the Net Proceeds of any sale, transferlease, assignment assignment, exchange or other dispositiondisposition for cash of any asset or group of assets (including, whether voluntarywithout limitation, but subject to clause (d) of this Section 5.5, insurance proceeds paid as a result of any enforcement action by destruction, casualty or taking of any member property of the Lender Group Borrower or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)any Subsidiary), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party not made in the ordinary course of its business) and identifies , by the long-term assets which shall constitute such reinvestment within 180 days Borrower or any Subsidiary of the date Borrower, in any such case no later than three Business Days following receipt by the Borrower or such Subsidiary of such sale or receipt proceeds, together with accrued interest to such date on the amount prepaid; PROVIDED, that, during any fiscal year, no such prepayment shall be required pursuant to subclause (iv) of insurance proceeds and (iithis Section 5.5(b) confirm that unless the aggregate amount of such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (Areceived by the Borrower and its Subsidiaries and not previously applied to prepayment of the Term Loans and the reduction of the Commitments pursuant to Section 5.5(b)(iv) is at least $250,000 for such fiscal year. Amounts prepaid pursuant to this Section 5.5(b) shall constitute Collateral, securing the payment be applied FIRST to installments of principal of the Obligations then outstandingTerm Loans until paid in full, (B) may be withdrawn by and SECOND to the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in reduction of the business of such Borrower Party Revolving Credit Commitments and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as Revolving Credit Loans and/or to cash collateralize or replace Letters of Credit. Prepayments of installments of Term Loans shall be applied in the inverse order of maturity and such amounts so prepaid may not be reborrowed. Nothing in this Section 5.5(b) shall be construed to derogate any restriction or limitation contained in any Loan Document imposed on any transaction of the types described in this Section 5.5(b), including without limitation the restrictions set forth above in Section 2.6(b) Sections 9.2, 9.5 and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period9.6 hereof.
(ivc) One hundred percent (100%) If at the end of a fiscal year of the Extraordinary Receipts in excess of $2,500,000 in Borrower the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties Leverage Ratio is greater than 3.0 to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing1.0, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after before the earlier of (A) the date on which the quarterly unaudited financial statements for any referred to in Section 8.1(a) are required to be delivered in respect of such fiscal quarter (commencing year of the Borrower, beginning with the fiscal quarter year ending June 30December 31, 2018) are delivered pursuant to Section 7.1(b)2000, or (B) and the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)are actually delivered, the Borrower Parties shall make a mandatory prepayment prepay the Term Loans and permanently reduce the Commitments in the amount of the Obligations in an amount equal to fifty percent (50%) % of Excess Cash Flow for such fiscal quarter in accordance year covered by such financial statements, together with accrued interest to such date on the amount prepaid. Amounts prepaid pursuant to this Section 2.6(b). Each such prepayment 5.5(c) shall be accompanied applied FIRST to installments of principal of the Term Loans until paid in full, and SECOND to the reduction of the Revolving Credit Commitments and the prepayment of the Revolving Credit Loans and/or to cash collateralize or replace Letters of Credit. Prepayments of installments of Term Loans shall be applied in the inverse order of maturity and such amounts so prepaid may not be reborrowed.
(d) Net Proceeds received by a certificate signed by an Authorized Signatory the Borrower or any Subsidiary as proceeds of insurance upon any destruction, casualty or taking with respect to any property of the Borrower Parties certifying or any Subsidiary need not be applied as set forth in Section 5.5(b) to the manner in extent that such Net Proceeds are committed by the Borrower or such Subsidiary to the repair, rebuilding or replacement of the property which Excess Cash Flow was the subject of such destruction, casualty or taking within 120 days after the receipt of such Net Proceeds and applied no later than 360 days following receipt of such Net Proceeds. If required by the resulting prepayment were calculatedAdministrative Agent, which certificate such Net Proceeds shall be held in form a special collateral account, subject to the sole dominion and substance control of the Administrative Agent and in a manner reasonably satisfactory to the Administrative Agent, as additional Collateral for the Obligations and the Guarantees, until such time as it is to be applied to such repair, rebuilding or replacement.
(vie) Any payments due under this Section 2.6(c) shall be accompanied Lender holding a Tranche B Term Loan may elect, by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) notice to the contraryAdministrative Agent by telephone (confirmed by telecopy or otherwise in writing) at least one Business Day prior to the prepayment date, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory a prepayment required of its Tranche B Term Loan pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower 5.5, in which case the aggregate amount of prepayments that would have been applied to Tranche B Term Loans but was so declined shall give prior written notice be applied to prepay Tranche A Term Loans and Tranche B Term Loans of any Lenders who accept prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required of their Tranche B Term Loans pursuant to clause (v) abovethis Section, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, on a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the pro-rata basis based on their respective then outstanding principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderamounts.
Appears in 1 contract
Mandatory Prepayments. (iAny prepayment under this Section 2.3 shall be applied by Agent, for the ratable benefit of the Lenders, in the same order as set forth in Section 2.2(b) [Reserved]and shall include the payment of any LIBOR breakage costs in accordance with Section 2.10 hereof. The amount of any such mandatory prepayment may not be reborrowed by Borrowers.
a. If Borrower or any of its Subsidiaries shall sell or otherwise dispose of any of its assets, including the Chemical Plant Assets and the Property (iiother than Permitted Dispositions and as permitted by Section 6.7 or Section 7.3), then Borrowers shall prepay Senior Obligations (except as set forth below) In in an amount equal to the event that, after the Agreement Dateaggregate Net Cash Proceeds of such sales or other dispositions, any Borrower Party or any Subsidiary such prepayment to be made within five (5) Business Days of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) receipt of the Net Cash Proceeds received by of such sale or other disposition, provided that no such prepayment shall be made from the proceeds of any Borrower Party sale or such Subsidiary other disposition of assets (other than a sale or disposition of the Chemical Plant Assts or the Property constituting any significant portion of either the Chemical Plant Assets or the Property, considered separately), unless the Net Cash Proceeds from such incurrence sale or other disposition of assets, other than the Property, shall exceed $5,000,000 in any fiscal year. Any such Net Cash Proceeds in excess of $5,000,000 shall be paid used to prepay the Senior Obligations as set forth above unless immediately after giving effect to such asset sale or disposition Consolidated Leverage is less than 2.75 to 1.0, in which case any prepayment shall be optional to Borrowers and not mandatory, provided that a sale of the Chemical Plant Assets or the Property (excluding a sale or disposition of the Chemical Plant Assets or the Property not constituting any significant portion of either the Chemical Plant Assets or the Property, considered separately) shall not be subject to this exclusion and any such sale shall result in a mandatory prepayment.
b. In the event of any sale or other disposition of all or substantially all of the stock or assets of Parent or the Borrowers, on a consolidated basis, except to another Borrower (excluding Cherokee) in a single transaction or series of transactions, then Borrower shall prepay all Senior Obligations (including any applicable Prepayment Premium) then outstanding, any such prepayment to be made within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment of such sale or other dispositiondisposition by Parent, whether voluntary, as a result of any enforcement action by any member of the Lender Group Borrower or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)such Subsidiary. Notwithstanding the foregoing, unless an Event of Default nothing in this Section 2.3(b) shall have occurred and be continuing or would result therefrom, apply to the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment sale or other disposition or any such casualty or condemnation loss of any Collateral or such all of the Chemical Plant Assets by Parent or Borrowers or to the sale or other assetsdisposition of any shares of Capital Stock of any Borrower, whose sole assets are the Chemical Plant Assets, so long as no Change of Control occurs in connection with the Borrower Parties sale of such Capital Stock.
c. In the event of any Change of Control (a)(iother than under clause (e) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent definition thereof), Borrowers shall prepay all Senior Obligations (notwithstanding the premium percentages described in Section 2.2(a), a Prepayment Premium equal to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days 1% of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment outstanding principal balance of the Obligations Term Loans) then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid made within five (5) Business Days of receipt thereof by from the Borrower Parties to the Lenders as a mandatory prepayment date of the Obligations in accordance with Section 2.6(b)occurrence of such Change of Control. Notwithstanding d. if on the foregoingdate or the dates the Dynegy Settlement is received, unless an a Potential Default or Event of Default shall have has occurred and be continuing or would result therefromis then continuing, Borrowers shall prepay the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause Senior Obligations (aexcluding any applicable Prepayment Premium), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify Dynegy Settlement, less the prepayment date and the principal amount of the Term Loans cash reserve established by Cherokee in its good faith basis necessary to be prepaid. Notwithstanding anything cover any judgment or claim that remains outstanding from any Borrower to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderDynegy.
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Sources: Loan Agreement (LSB Industries Inc)
Mandatory Prepayments. (i) [Reserved]At the option of the Lender in its sole and absolute discretion, no later than the fifth Business Day following the receipt of any Net Proceeds in respect of any Prepayment Asset Sale or any Casualty/Condemnation Event, in each case, in excess of (x) $5,000,000 in a single transaction or series of related transactions and (y) $20,000,000 in any fiscal year, the Borrower shall apply an amount (collectively, the “Subject Proceeds”) equal to 100% of such Net Proceeds in excess of such thresholds set forth in the foregoing clauses (x) and (y) to prepay the outstanding Loan, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment; and together with any other Obligations then due and owing, if any, under this Agreement and the other Loan Documents; provided, that if Holdings or any of its Subsidiaries intends to reinvest such Net Proceeds in the business of Holdings or any of its subsidiaries (including any acquisitions or other Investment permitted under Section 6.05) within 18 months following receipt thereof, then no prepayment shall be required pursuant to this clause (i) in respect of such Net Proceeds (or the applicable portion thereof, if applicable) except to the extent of any such Net Proceeds that have not been so invested (or contractually committed to be invested) by the end of such 18-month period (or, if contractually committed to be so invested within such 18-month period, have not been so invested within 24 months after receipt thereof), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so invested (or contractually committed to be invested).
(ii) In At the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member option of the Lender Group in its sole and absolute discretion, in the event that Holdings or otherwise any of its Subsidiaries shall receive Net Proceeds from the issuance or incurrence of Indebtedness of Holdings or any of its Subsidiaries (other than with respect to the sale, transfer or disposition of assets Indebtedness permitted under clauses (i) and (ii) of Section 8.7(b6.01)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest shall, substantially simultaneously with (and in any event not later than the Business Day immediately following) the receipt of such Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral by Holdings or such other assetsSubsidiary, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior apply an amount equal to the date any payment thereof would have been required hereunder 100% of the intent to reinvest such Net Cash Proceeds to prepay the outstanding Loan together in similar assets for each case with accrued and unpaid interest on the business of a Borrower Party (which assets shall principal amount to be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of paid to but excluding the date of such sale or receipt of insurance proceeds payment; and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Accounttogether with any other Obligations, which Net Cash Proceeds when so deposited (A) shall constitute Collateralif any, securing then due and owing under this Agreement and the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Periodother Loan Documents.
(iviii) One hundred percent No later than the tenth (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (510th) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days Day after the earlier of (A) the date on which the quarterly unaudited financial statements for with respect to any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) Fiscal Year of Holdings are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b5.01(b), commencing with the Fiscal Year ending December 31, 2024, (A) with respect to the Fiscal Year ending December 31, 2024, solely in the event that the Consolidated Total Leverage Ratio is greater than 5.00:1.00 as of the last day of the applicable Test Period and (B) with respect to the Fiscal Year ending December 31, 2025 and any Fiscal Year ending thereafter, solely in the event that the Consolidated Total Leverage Ratio is greater than 4.75:1.00 as of the last day of the applicable Test Period, the Borrower shall prepay outstanding Loan in an aggregate principal amount (the “ECF Prepayment DateAmount”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount ) equal to fifty percent (50%) 75% of Excess Cash Flow for such fiscal quarter Fiscal Year; provided that, at the option of the Lender in its sole and absolute discretion, the Lender may, in lieu of requiring any prepayment of the Loan with any ECF Prepayment Amount required pursuant to this clause (iii), require that such ECF Prepayment Amount be deposited by the Borrower in the ECF Control Account; provided, further, that any amount drawn by the Lender from the ECF Control Account in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
this clause (vi) Any payments due under this Section 2.6(ciii) shall be accompanied by all accrued interest on reduce the aggregate principal amount of the Loans being prepaid and applied Loan outstanding under this Agreement on a dollar-for-dollar basis; provided, further, that any funds remaining in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in ECF Control Account on the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) Maturity Date shall be applied first to Base Rate Advances and then to Eurodollar Advances the repayment of the outstanding Loan. For the avoidance of doubt, no funds deposited into the ECF Control Account in direct order of Eurodollar Advance Period maturities. Nothing in accordance with this Section 2.6(c2.03(b)(iii) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)constitute Declined Proceeds.
(viiiv) The Solely in the event that the Specified 2024 Acquisition is not consummated on or prior to the Specified 2024 Acquisition Outside Date, the Borrower shall give prior written notice prepay a portion of any prepayment required under this Section 2.6(cthe outstanding Loan in an aggregate principal amount equal to $75,000,000 within three (3) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderSpecified 2024 Acquisition Outside Date.
Appears in 1 contract
Sources: Secured Seller Note Agreement (American Water Works Company, Inc.)
Mandatory Prepayments. (ia) [Reserved].
Subject to the proviso contained in this subsection (iia), promptly (and in any event, within three (3) In Business Days) after receipt by the event that, after the Agreement Date, any Borrower Party or any Subsidiary Loan Party of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by of any Asset Sale or Recovery Event, the Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of prepay the Obligations in accordance with Section 2.6(b).
(iii2.12(d) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds Proceeds; provided that the Borrower shall not be applied) required to the prepayment of prepay the Obligations as set forth above with respect to (i) proceeds from the Asset Sales in the ordinary course of business, (ii) proceeds from other Asset Sales permitted under Section 2.6(b7.6 (other than clauses (l)(iii) and (bm) deliver a certificate thereof), (iii) so long as the Approved Floorplan Financing Documents are in effect, proceeds from Asset Sales of Floorplan Collateral and (iv) proceeds of any sale or disposition by the Borrower to or any Loan Party of any of its assets, or proceeds from casualty insurance policies or eminent domain, condemnation or similar proceedings that in the Administrative Agent that states that the Borrower Parties have case of this clause (iv) are reinvested such Net Cash Proceeds in assets then used or usable in the business of the Borrower and the Loan Parties within one hundred eighty (180) days following receipt thereof or in which the Borrower or such Loan Party has entered into a Borrower Party commitment to reinvest such proceeds within 180 two hundred seventy (270) days following receipt thereof and such proceeds are reinvested in assets or used or usable in the business of the date Borrower and the Loan Parties within three hundred sixty (360) days following receipt thereof; provided, further, that if such 180-day period or 360-day period, as applicable, expires without the Borrower or such Loan Party reinvesting all or any portion of such sale proceeds, promptly (and in any event within three (3) Business Days) thereafter, the Borrower or receipt of insurance proceeds (such Loan Party shall prepay the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, Obligations in an amount equal to the unused portion of such remaining Net Cash Proceeds.
(b) No later than the Business Day following the date of receipt by the Borrower or any Loan Party of Net Cash Proceeds is required to be applied to of any issuance of Indebtedness (other than Indebtedness permitted under Section 7.1 (other than Credit Agreement Refinancing Indebtedness)), the Borrower shall prepay the Obligations in accordance with Section 2.6(b2.12(d) immediately upon the expiration of the in an amount equal to such Net Cash Proceeds Reinvestment PeriodProceeds.
(ivc) One Within one hundred percent and twenty (100%120) days after the end of each Fiscal Year commencing with the Fiscal Year ending September 30, 2023, the Borrower shall prepay the Obligations in an aggregate amount equal to (xv) 50100% of Consolidated Excess Cash Flow for such Fiscal Year if the Consolidated Leverage Ratio is greater than or equal to 3.50:1.00 as of the Extraordinary Receipts end of such Fiscal Year, (w) 75% of Consolidated Excess Cash Flow for such Fiscal Year if the Consolidated Leverage Ratio is less than 3.50:1.00 but greater than or equal to 2.75:1.00 as of the end of such Fiscal Year, (x) 50% of Consolidated Excess Cash Flow for such Fiscal Year if the Consolidated Leverage Ratio is less than 2.75:1.00 but greater than or equal to 1.50:1.00 as of the end of such Fiscal Year, (y) 25% of Consolidated Excess Cash Flow for such Fiscal Year if the Consolidated Leverage Ratio is less than 1.50:1.00 but greater than or equal to 0.75:1.00 as of the end of such Fiscal Year and (z) 0% of Consolidated Excess Cash Flow for such Fiscal Year if the Consolidated Leverage Ratio is less than 0.75:1.00 as of the end of such Fiscal Year, in excess of $2,500,000 in each case minus the aggregate in amount of any fiscal year received by any Borrower Party or any voluntary prepayments of its Subsidiaries shall be paid within five the Term Loans made with Internally Generated Cash during such Fiscal Year.
(5d) Business Days of receipt thereof Any prepayments made by the Borrower Parties pursuant to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (aSections 2.12(a), (b) or (dc) of the definition thereofabove shall be applied as follows: first, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following fees and reimbursable expenses then due and payable pursuant to any of the occurrence Loan Documents; second, to all reimbursable expenses of the Lenders and during all fees and reimbursable expenses of the continuance Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective Pro Rata Shares (or other allocated share set forth herein) of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective Pro Rata Shares of such interest and fees; fourth, on a pro rata basis (or on a less than pro rata basis for any Incremental Term Loans that so elect pursuant to Section 2.23) to the principal balance of each Class of Term Loans (or, in the case of the incurrence of any Credit Agreement Refinancing Indebtedness, to the applicable Class of Term Loans being refinanced), until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of such Term Loans, and applied, in the case of a prepayment under Section 2.12(a), first to the next four scheduled installments of principal (in forward order of maturity) and then pro rata to the remaining principal installments of the Term Loans, and in the case of Sections 2.12(b) and (c), pro rata to the principal installments of the Term Loans; fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender, sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments and seventh, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses fifth through seventh above, unless an Event of DefaultDefault has occurred and is continuing and the Required Lenders so request.
(e) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, be applied (as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such Extraordinary Receipts excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall be applied) applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Loans to the full extent thereof, and finally to Term SOFR Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, the Borrower shall Cash Collateralize its reimbursement obligations with respect to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts all Letters of Credit in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodexcess plus any accrued and unpaid fees thereon.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (a) Immediately upon receipt by the Borrower or any of its Domestic Subsidiaries of any (i) [Reserved].
Net Cash Proceeds of any sale or disposition by the Borrower or any of its Domestic Subsidiaries of any of its assets or (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any salecasualty insurance policies or eminent domain, transfercondemnation or similar proceedings that, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), exceed (A) $5,000,000 for any such single asset sale (or series of related asset sales) or for any such single casualty event or (B) $20,000,000 for all such asset sales or casualty or condemnation loss events from the date hereof through the Maturity Date, the Borrower shall prepay the Term Loans in an amount equal to all such Net Proceeds (subject to the terms of any Collateral or other the Intercreditor Agreement); provided, that the Borrower shall not be required to prepay the Term Loans with respect to Net Cash Proceeds from (x) sales of assets in the ordinary course of business of the type described in Section 7.6(a) and (b), (y) sales of assets of any the types described in Section 7.6(c), (d), (e) and (f) or (z) casualty insurance policies or eminent domain, condemnation or similar proceedings that are, in either case of clause (y) or clause (z), reinvested in assets then used or usable in the business of the Borrower Party and its Subsidiaries within 180 days following receipt thereof or committed to be reinvested pursuant to a binding contract prior to the expiration of such 180-day period and actually reinvested within 360 days following receipt thereof, so long as such proceeds are held in accounts at SunTrust Bank until reinvested. Any such prepayment shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations applied in accordance with Section 2.6(b). Notwithstanding subsection (c) of this Section.
(b) No later than the foregoing, unless an Event Business Day following the date of Default shall have occurred and be continuing or would result therefrom, receipt by the Borrower Parties may elect to reinvest or any of its Domestic Subsidiaries of any Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss issuance of any Collateral or such other assets, so long as Indebtedness by the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromDomestic Subsidiaries, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations Term Loan in an amount equal to fifty percent all such Net Cash Proceeds (50%) subject to the terms of Excess Cash Flow for such fiscal quarter in accordance the Intercreditor Agreement); provided, that the Borrower shall not be required to prepay the Term Loan with respect to proceeds of Indebtedness permitted under Section 2.6(b)7.1. Each Any such prepayment shall be accompanied by a certificate signed by an Authorized Signatory applied in accordance with subsection (c) of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentthis Section.
(vic) Any payments due under this Section 2.6(c) shall be accompanied prepayments made by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans Borrower pursuant to this Section 2.6(csubsection (a) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (vb) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) be applied to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of scheduled amortization payments on the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderin inverse order of maturity.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Aaron's Inc)
Mandatory Prepayments. Any prepayment under this Section 2.3 shall be applied first to any expenses to which the Purchaser may be entitled, second to accrued interest, third to any applicable Prepayment Fee, fourth to the principal (i) [Reserved].including capitalized PIK Interest evidenced by the PIK Notes), in the inverse order of maturities, and fifth to any damages to which any Purchaser may be entitled. The amount of any such mandatory prepayment may not be reborrowed by the Company. The Company shall make mandatory prepayments to the Purchaser of the original principal amount of the Priority Senior Subordinated Notes in each of the following circumstances:
(iia) In the event that, If during any fiscal year after the Agreement DateSenior Debt is paid in full and after all commitments of the Senior Lender with respect thereto have been terminated, any Borrower Party Parent or any Subsidiary the Company shall sell or otherwise dispose of a Borrower Party shall incur any Funded Debt (other than Funded Debt as permitted under by Section 8.1, one hundred 6.8 or Section 7.3) any property or properties in excess of five percent (1005%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one its total assets (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, including as a result of any enforcement action by any member a Casualty Event (to the extent the net cash proceeds therefrom are not subsequently applied or committed to apply toward replacement, restoration, rebuilding or repair of the Lender Group or otherwise damaged property within ninety (other than with respect 90) days after the receipt of such net cash proceeds)), then the Company shall prepay the Priority Senior Subordinated Notes in an amount equal to the sale, transfer or disposition lesser of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date aggregate net cash proceeds of such sale or receipt other disposition (minus the cost of insurance proceeds and any replacement assets or properties purchased within ninety (90) days either before or after such sale) or (ii) confirm that the aggregate amount of all Priority Senior Subordinated Obligations (including any applicable Prepayment Fee) such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party prepayment and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required premium to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid made within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days of receipt of such net proceeds.
(b) In the event of any sale or other disposition of all or substantially all of the stock or assets of Parent or the Company in a single transaction or series of transactions or a Casualty Event (to the extent not subsequently applied or committed to apply toward replacement, restoration, rebuilding or repair of the damaged property within 90 days after the earlier receipt of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”net cash proceeds), the Borrower Parties shall make a mandatory prepayment Company shall, after the Senior Debt has been paid in full and after all commitments of the Obligations Senior Lender with respect thereto have been terminated, prepay the Priority Senior Subordinated Notes in an amount equal to fifty percent the lesser of (50%i) the aggregate remaining net cash proceeds of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(bsales or dispositions (minus the cost of any replacement assets or properties purchased within ninety (90) days either before or after such sale) or (ii) the aggregate amount of all Priority Senior Subordinated Obligations (including any applicable Prepayment Fees). Each , such prepayment shall to be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
made within ten (vi10) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount receipt of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereundernet proceeds.
Appears in 1 contract
Mandatory Prepayments. (a) Upon (i) [Reserved]the occurrence of a Change in Control of the Company, (ii) a transfer of all or substantially all of the assets of the Company to any Person in a single transaction or series of related transactions, (iii) a consolidation or merger of the Company with or into another Person in which the Company is not the surviving entity (other than a merger which is effected solely to change the jurisdiction of incorporation of the Company and results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of Common Stock) (each of items (i), (ii) and (iii) being referred to as a " Sale Event"), or (iv) the occurrence of a Registration Default which continues uncured for a period of twenty (20) days, then, in each case, the Company shall, upon request of the Majority Holders, redeem the Convertible Debentures and Warrants. The redemption price payable upon any such redemption shall be the redemption price in SECTION 5 of the Convertible Debentures and SECTION 13 of the Warrants, respectively (referred to herein as the "Formula Price").
(iib) Upon the issuance of the Maximum Number of Shares, the receipt by the Company of Notice of Conversion requiring the issuance of shares of Common Stock in excess of the Maximum Number of Shares, and the failure within 40 days of such issuance to obtain shareholder approval to issue additional shares of Common Stock required to be issued in connection with such Notices of Conversion (the " Redemption Event"), the Company shall redeem the outstanding balance of each Convertible Debenture and Warrant for the Formula Price.
(c) In the event thatthat there is an insufficient number of authorized, after issuable, shares of Common Stock registered under the Agreement DateRegistration Statement filed by the Company to allow Purchaser to fully convert the Convertible Debentures and exercise all Warrants held by Purchaser and sell such shares issued thereon, any Borrower Party or any Subsidiary then the Company shall immediately file an amendment to the then current Registration Statement to register a sufficient number of such shares to convert said Convertible Debentures and Warrants. Upon the failure within twenty (20) Trading Days measured from the date of filing the Registration Statement to register a Borrower Party sufficient number of such shares, the Company shall incur any Funded Debt other than Funded Debt permitted under Section 8.1redeem the outstanding balance of each Convertible Debenture and Warrant for the Formula Price. In addition, one hundred percent (100%) failure of the Net Cash Proceeds received by any Borrower Party or Company to register a sufficient number of such Subsidiary from shares to fully convert said Convertible Debentures and exercise such incurrence Warrants shall be paid within one (1a Registration Default under SECTION 10.4(E) Business Day of receipt from the date of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment Notice of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior Conversion to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (Ai) the date on which redemption of the quarterly unaudited financial statements for any fiscal quarter (commencing with outstanding balance of the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), Convertible Debentures and exercise of all such Warrants or (Bii) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment full conversion of the Obligations in an amount equal to fifty percent (50%) Convertible Debentures and exercise of Excess Cash Flow for all such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative AgentWarrants.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (Boston Biomedica Inc)
Mandatory Prepayments. Subject to clause (c) below, the Borrower will make mandatory prepayments of borrowings under the Loan (or in the case of clause (i) [Reserved].or (ii) below, Loan B only) as follows (subject to exceptions to be agreed):
(i) if there shall be any principal amount of Loan B then outstanding, upon receipt of net proceeds of the permitted sale of any First Lien Collateral, subject to a right of the Borrower to apply such proceeds, within 180 days of receipt thereof, to the purchase of replacement First Lien Collateral;
(ii) In the event thatif there shall be any principal amount of Loan B then outstanding, after the Agreement Dateupon receipt of warranty, insurance or condemnation proceeds with respect to any Borrower Party or any Subsidiary of First Lien Collateral, subject to a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) right of the Net Cash Proceeds received by any Borrower Party or to apply such Subsidiary from such incurrence shall be paid proceeds, within one (1) Business Day 180 days of receipt of the proceeds thereof by such Borrower Party thereof, to the Lenders as a mandatory prepayment repair of such First Lien Collateral or the Obligations in accordance with Section 2.6(b).purchase of replacement First Lien Collateral;
(iii) One hundred percent (100%) with the proceeds of any excess draws under any Loan to the extent an Agreed-Upon Procedures Report indicates that any of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result proceeds of any enforcement action Advance were not applied to pay Eligible Project Costs and DOE, in its sole discretion, requests such prepayment, it being understood that in the absence of a request for prepayment the amount of any excess draws shall be deducted from subsequent Advances requested by the Borrower;
(iv) within 90 days after the earlier of (x) the date on which any member Project (or, in the case of any Project comprised of sub-programs, such sub-program) is canceled prior to the Lender Group Timing Milestone identified as “Job 1” in the Project Business Plan for such Project (or otherwise sub-program) or, if Program Approval has not been achieved for a Project (or sub-program thereof), prior to the Estimated Program Approval Date for such Project (or sub-program), (y) the date on which any Project is modified to the extent that any costs associated with such Project no longer constitute Eligible Project Costs or (z) the date as of which achievement of any Project Timing Milestone in respect of such Project (or sub-program) has been delayed by at least 24 months, all Advances theretofore made to fund Eligible Project Costs associated with such Project (or sub-program) (other than any Eligible Project Costs that are shared with respect to any other Project (or sub-program) that has not been so cancelled, modified or delayed) shall be repaid in full by the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss Borrower; the Borrower shall promptly notify DOE of any Collateral such Project (or other assets of any Borrower Party shall be paid sub-program) cancellation, modification or delay and provide to DOE, within two (2) Business Days of receipt thereof by any Borrower Party as 15 days after such notice, a mandatory prepayment calculation of the Obligations in accordance with Section 2.6(bamount to be prepaid under this clause (iv). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromIn addition, the Borrower Parties may elect shall provide to reinvest Net Cash Proceeds from DOE such information as DOE shall reasonably request to enable DOE to determine whether it disagrees with such calculation. If DOE disagrees with any such salecalculation, transfersuch disagreement shall be resolved pursuant to procedures to be specified in the Loan Documents;
(v) if, assignment or other disposition or at any time, the aggregate principal amount of all Advances corresponding to any Project exceeds the Project Maximum Loan Amount for such casualty or condemnation loss of any Collateral or such other assetsProject, so long as the Borrower Parties (a)(i) notify the Administrative Agent will prepay such Advances in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be appliedexcess; and
(vi) to if, at any time, the prepayment aggregate principal amount of all Advances under the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from Loans exceeds the Maximum Total Loan Amount, the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested will prepay such Net Cash Proceeds Advances in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Periodexcess.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved]Upon the sale, transfer or other disposition of any assets (or group of related assets) by the Borrower or any Subsidiary, other than (A) sales of inventory in the ordinary course of business, (B) sales of obsolete or unusable equipment, or (C) sales and other dispositions that, either singly or together with any and all other sales and dispositions forming part of the same transaction or related series of transactions, relates to assets having a net book value of less than $1,000,000, the Borrower shall, within one Business Day of the Borrower's or such Subsidiary's receipt of the proceeds thereof, prepay the outstanding principal amount of the Loans in an amount equal to 100% of the Net Cash Proceeds therefrom. If any such transaction would result in the payment of an indemnity under Section 5.02, the Bank shall hold any payment received as cash collateral for the Obligations in an interest-bearing deposit account at the Bank pursuant to pledge documentation satisfactory to the Bank until the earlier of the end of the next Interest Period or the occurrence of an Event of Default.
(ii) In Upon the event that, after issuance and sale of any debt or equity securities by the Agreement Date, any Borrower Party or any Subsidiary (not including, however, borrowings under the Existing Credit Facility or other credit facilities of a any Subsidiary existing on May 1, 1999), the Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1shall, within one hundred percent (Business Day of the Borrower's or such Subsidiary's receipt of the proceeds thereof, prepay the outstanding principal amount of the Loans in an amount equal to 100%) % of the Net Cash Proceeds therefrom. If any such transaction would result in the payment of an indemnity under Section 5.02, the Bank shall hold any payment received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of cash collateral for the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) an interest-bearing deposit account at the Bank pursuant to pledge documentation satisfactory to the Bank until the earlier of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member end of the Lender Group next Interest Period or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Ceridian Corp)
Mandatory Prepayments. (a) Subject to the provisions of paragraphs (c), (d), and (e) below, following any issuance of debt obligations or preferred stock of the Company or any of its Subsidiaries (other than Indebtedness of the Company or any of its Subsidiaries permitted to be issued under subsection 9.2), an amount equal to 100% of the Net Proceeds of such debt or preferred stock issuance shall, unless the Company and the Required Lenders otherwise agree, be applied by the Company on the date of receipt thereof to the prepayment of the Term Loans.
(i) [Reserved].
Subject to paragraphs (iic), (d), and (e) In below, following the event that, after consummation of any Asset Sale by the Agreement Date, any Borrower Party Company or any Subsidiary of a Borrower Party shall incur its Subsidiaries, in the case of cash proceeds, and following receipt of cash proceeds representing payments under notes or other securities received in connection with any Funded Debt other than Funded Debt permitted under Section 8.1non-cash consideration obtained in connection with such Asset Sale, one hundred percent (an amount equal to 100%) % of the Net Cash Proceeds received of such Asset Sale shall, unless the Company and the Required Lenders otherwise agree, be applied by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day the Company on the date of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)Term Loans. Notwithstanding the foregoing, unless an if no Default or Event of Default shall have occurred and shall be continuing at the time of such Asset Sale or would result therefromat the proposed time of the application of such proceeds, such proceeds shall not constitute Net Proceeds except to the extent that within 360 days of receipt of such proceeds, they have neither been reinvested in productive assets of a kind then used or usable in the business of the Company and its Subsidiaries nor contractually committed (and any such proceeds not applied to such contractual commitments at the time required shall be deemed to be Net Proceeds to be applied as set forth in this subsection) to be used for such purposes, at which time all such proceeds shall be deemed to be Net Proceeds.
(ii) Subject to paragraphs (c), (d), and (e), if for any fiscal year of the Company, commencing with its fiscal year ending on December 31, 2006, (A) there shall be Excess Cash Flow for such fiscal year, and (B) the Secured Leverage Ratio as of the last day of such fiscal year was greater than 2.5 to 1, then, on or prior to April 30 of the following fiscal year, an amount equal to 50% of such Excess Cash Flow shall be applied, to the prepayment of the Term Loans.
(iii) Upon Condemnation Awards or Insurance Proceeds in an amount equal to $2,000,000.00 or more in respect of any event or series of related events being received by or paid to or for the account of the Company or any of its Subsidiaries (other than the first $5,000,000.00 in Condemnation Awards or Insurance Proceeds received by the Company in any fiscal year), and not otherwise included in Section 5.6(a), the Borrower Parties may elect Company shall prepay an aggregate principal amount of Term Loans equal to reinvest Net Cash 100% of all Condemnation Awards and/or Insurance Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral received therefrom immediately upon receipt thereof by the Company or such other assetsSubsidiary; provided, so long however, that with respect to any Insurance Proceeds or Condemnation Awards which constitute Reinvestment Funds, at the election of the Company (as notified by the Borrower Parties (a)(i) notify Company to the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date receipt of such sale Insurance Proceeds or receipt of insurance proceeds Condemnation Awards), and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations long as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of no Default shall have occurred and be continuing or would result therefrom, and such funds satisfy the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) requirements of the definition thereofof "Reinvestment Funds", so long as the Borrower Parties (a)(i) notify Company or such Subsidiary may apply within 364 days after the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; and (ii) confirm provided, further, however, that such Extraordinary Receipts have been deposited into a Blocked Account, any cash proceeds not so applied or which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing fail to satisfy the payment requirements of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business definition of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts "Reinvestment Funds" shall be applied) immediately applied to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment PeriodTerm Loans.
(vc) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, Partial prepayments of the Term Loans pursuant to this Section 2.6(c) subsection 5.5 or 5.6 shall be applied first to Base Rate Advances the next four quarterly installments, and then to Eurodollar Advances the remaining installments on a pro rata basis, in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow each case pro rata as between the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement Tranche B Term Loans and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(cAdditional Term Loans, if any.
(d) to Upon receipt by the contrary, each Lender shall be permitted in its sole discretion to decline all Company or any portion of its Subsidiaries of the amounts required to be paid pursuant to clause (i) of paragraph (b) above from any Asset Sale consisting of the sale of shares of capital stock of any mandatory prepayment required pursuant Subsidiary of the Company (or, upon receipt by the Company or its Subsidiaries of such amounts as are permitted to the terms hereof, other than mandatory prepayments required under be retained in accordance with clause (ve) of this Section 2.6(csubsection 5.6).
, (vii1) The Borrower the Administrative Agent shall give prior written notice release to the Company, without representation, warranty or recourse, express or implied, those of such shares of capital stock of such Subsidiary held by it as Pledged Stock (as defined in the Company Pledge Agreement) and (2) the Agents and the Lenders will, upon the request of the Company, execute and deliver any prepayment required under this Section 2.6(c) instrument or other document in a form acceptable to the Administrative Agent which may reasonably be required to evidence such release.
(e) In the event and on such occasion that the Aggregate Revolving Credit Extensions of Credit exceed the aggregate Revolving Credit Commitments, the Company shall prepay Revolving Credit Loans or Swing Line Loans (or, if no such Loans are outstanding, deposit cash collateral in an account with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to such excess.
(f) The Company shall give the Administrative Agent (which shall promptly notify each Lender) notice as far specified in advance thereof subsection 5.5 of each prepayment pursuant to subsection 5.5 setting forth the date and amount thereof. Prepayments of Eurodollar Loans pursuant to this subsection 5.6, if not on the last day of the Interest Period with respect thereto, shall, at the Company's option, as long as no Default or Event of Default has occurred and is continuing, be prepaid subject to the provisions of subsection 5.21 or such prepayment (after application to any ABR Loans, in the case of prepayments by the Company) shall be deposited with the Collateral Agent as cash collateral for such Eurodollar Loans on terms reasonably practicable satisfactory to the Collateral Agent and thereafter shall be applied to the prepayment of the Eurodollar Loans on the last day of the respective Interest Periods for such Eurodollar Loans next ending most closely to the date of receipt of such Net Proceeds, Insurance Proceeds or Condemnation Awards, as applicable. After such application, any remaining interest earned on such cash collateral shall be paid to the Company.
(and in any event at least three Business Days prior thereto)g) Upon the Revolving Credit Termination Date the Company shall, and, except with respect to prepayments required pursuant each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to clause be cancelled without such Letter of Credit being drawn upon or (vii) above, deliver collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a letter of credit issued by banks or a bank satisfactory to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything on terms satisfactory to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderAdministrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Be Aerospace Inc)
Mandatory Prepayments. (a) Borrower shall make a prepayment of the Term Loan until paid in full upon the occurrence of any of the following at the following times and in the following amounts:
(i) [Reserved].
(ii) In concurrently with the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received receipt by any Borrower Loan Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the any Net Cash Proceeds from any saleAsset Disposition with respect to any of the Pledged Equity and/or Pledged Notes, transfer, assignment or other disposition, whether voluntary, as a result in an amount equal to 100% of such Net Cash Proceeds;
(ii) within five (5) Business Days from the receipt by any Loan Party of any enforcement action by Net Cash Proceeds from any member of the Lender Group or otherwise Asset Disposition (other than with respect to the sale, transfer or disposition of assets permitted under clauses as provided in subsection (i) and above and/or the sale (iior other transfer) of Section 8.7(b)the Capital Securities of Borrower (or any Affiliate of Borrower) and the sale (or other transfer) of cash or Investment Property deposited in or credited to the Securities Account in the ordinary course of business), or casualty or condemnation loss in an amount equal to 100% of such Net Cash Proceeds; provided that, such prepayment shall only be required if Net Cash Proceeds from Asset Dispositions exceed $10,000,000, in the aggregate, in any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party given Fiscal Year; provided further, that so long as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an no Event of Default shall have occurred and be continuing or would result therefromcontinuing, the Borrower Parties and its Subsidiaries may elect invest an amount equal to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition all or any such casualty or condemnation loss portion of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 365 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest thereof in such identified long-term assets that are useful in the business of such the Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied its Subsidiaries (or an any similar or related or ancillary business), in which case the amount equal to of such Net Cash Proceeds so invested shall not be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c4.1.2(a)(ii); and
(iii) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow promptly upon the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited receipt by this Agreement and the other any Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion Party of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice Net Cash Proceeds from any issuance of any prepayment required under this Debt of such Loan Party (excluding (1) Debt permitted by Section 2.6(c10.1 and (2) Debt issued by shareholders of Borrower to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior theretoBorrower), and, except with respect in an amount equal to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount 100% of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderNet Cash Proceeds.
Appears in 1 contract
Sources: Loan and Security Agreement (Kinsale Capital Group, Inc.)
Mandatory Prepayments. (ia) [Reserved].
(ii) In Not later than the event thatthird Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (apply 100%) % of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans; provided that such Net Cash Proceeds shall only be required to be applied to the extent (if any) that such Net Cash Proceeds remain after any mandatory prepayments required by the First Lien Loan Agreement (or any waiver, consent, amendment or modification thereof entered into in order to permit such Asset Sale) shall have been made in accordance with the terms thereof.
(b) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Debt for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from (i) borrowings under the First Lien Loan Agreement, (ii) the issuance of Permitted Subordinated Debt or (iii) issuance of any Debt permitted pursuant to 6.01(j), in each case, permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party subsidiary, apply an amount equal to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) % of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than received with respect thereto to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm prepay outstanding Loans; provided that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may only be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations extent (if any) that such Net Cash Proceeds remain after any mandatory prepayments required by the First Lien Loan Agreement (or any waiver, consent, amendment or modification thereof entered into in order to permit such issuance or incurrence of Debt for money borrowed of any Loan Party or any subsidiary of a Loan Party) shall have been made in accordance with Section 2.6(b) immediately upon the expiration terms thereof. For the avoidance of doubt, to the extent any required prepayment under the First Lien Loan Agreement is waived or any proceeds are declined, such amounts shall be applied to the repayment of the Net Cash Proceeds Reinvestment PeriodLoans hereunder.
(ivc) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any The Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on , at the principal amount time of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c2.13, (i) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory the chief financial officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, a Prepayment Notice at least five Business Days prior to the date of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Type of each Loan being prepaid and the principal amount of the Term Loans each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(d) Notwithstanding anything the foregoing, any Term Lender may elect, by written notice to the contrary hereinAdministrative Agent by noon, failure New York City time, at least four Business Days prior to provide the applicable prepayment date (or such notice hereunder shorter period as may be acceptable to the Administrative Agent), to decline all (but not less than all) of any mandatory prepayment of its Term Loans pursuant to this Section 2.13 (such declined amounts, the “Declined Proceeds”). Any Declined Proceeds shall be offered to the Term Lenders not preclude so declining such prepayment (with such Term Lenders having the right to decline any prepayment with Declined Proceeds in the same manner provided for in the previous sentence). To the extent such Term Lenders elect by 10:00 a.m., New York City time, at least three Business Days prior to the applicable repayment date (or such shorter period as may be acceptable to the Administrative Agent) to decline their pro rata shares of such Declined Proceeds, such remaining Declined Proceeds may be retained by the Borrower. Notwithstanding any provision herein to the contrary, nothing herein shall limit the Borrower’s ability to make optional prepayments in accordance with Section 2.12.
(e) The Borrower shall notify the Agent of the occurrence of a Change in Control within one Business Day thereof, and the Agent shall promptly thereafter notify the Lenders thereof. At any time prior to the 30th day following delivery of the notice by the Agent pursuant to the preceding sentence (the “Put Date”), each Lender shall have the right, by notice to the Borrower and the Agent, to require the Borrower, one Business Day after the Put Date, to prepay in full (but not in part) the outstanding principal amount of such prepayment hereunderLender’s Loans at a purchase price equal to 101% of the principal amount thereof, together with accrued and unpaid interest on the principal amount thereof to but excluding the date of payment, and all other amounts then due to such Lender (including amounts payable under Section 2.16) under the Loan Documents.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Crimson Exploration Inc.)
Mandatory Prepayments. (i) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied applieds (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by bys a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent. Payments of Excess Cash Flow pursuant to this Section 2.6(c)(v) shall not reduce the amount of any Scheduled Amortization Payment required to be made pursuant to Section 2.6(b).
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Fluent, Inc.)
Mandatory Prepayments. (a) Unless the Administrative Agent shall otherwise agree, if (i) [Reserved].
any Debt (excluding any Debt permitted pursuant to Section 9.03) shall be incurred by the Borrower or any Subsidiary, or (ii) In the event thatany Asset Sale shall occur, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days after the date of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing such incurrence or would result therefromAsset Sale, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) shall prepay the principal amount of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent Loans in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment amount of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from Net Cash Proceeds of such incurrence or Asset Sale; provided, however, that, upon written notice by the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of not less than five (5) Business Days after the date of receipt of any Net Cash Proceeds, such proceeds may be retained by the Borrower and its Subsidiaries (and be excluded from the “Extraordinary Receipts Reinvestment Period”). If and prepayment requirements of this clause) if (w) the Borrower informs the Administrative Agent in such notice of its good faith intention to apply (or cause one or more of its Subsidiaries to apply) such Net Cash Proceeds to the extent acquisition of other Property or, in the case of Net Cash Proceeds as a result of a Recovery Event, to use such Extraordinary Receipts Net Cash Proceeds to repair the affected assets of Borrower or any Subsidiary, (x) within 180 days following the receipt of such Net Cash Proceeds, such proceeds are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal either applied to such remaining Extraordinary Receipts is required acquisition or repair or the Borrower or a Loan Party has entered into a bona fide binding contract not prohibited by this Agreement committing to be make the acquisition or repair with a Person other than a Loan Party or any Affiliate of a Loan Party and such Net Cash Proceeds are subsequently applied to prepay the Obligations in accordance with Section 2.6(bsuch contract within ninety (90) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On days after the date that such agreement is ten entered into, (10y) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing if such proceeds are not applied to such acquisition or repair in accordance with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)foregoing, the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on prepay the principal amount of the Loans being prepaid in an amount equal to the amount of such proceeds not so applied and applied (z) in the manner set forth in case of Net Cash Proceeds received as a result of an Asset Sale, such proceeds being applied or committed to an acquisition do not exceed $5,000,000 during any period of twelve (12) consecutive calendar months. The provisions of this Section 2.10 and 3.02(a) do not constitute a consent to the incurrence of any Debt or any Asset Sale not otherwise permitted by the terms hereof.
(b) Unless the Administrative Agent shall be subject otherwise agree, if on any date any Loan Party shall receive a Purchase Price Refund which yields aggregate proceeds to any applicable prepayment premiums set forth herein and Loan Party or any of its Subsidiaries in excess of $3,000,000, then, not less than five (5) Business Days after the other Loan Documents. Within date of receipt by such Person of such Purchase Price Refund, the parameters Borrower shall prepay the principal amount of the applications set forth aboveLoans in an amount equal to the amount of such Purchase Price Refund. The provisions of this Section 3.02 do not constitute a consent to the consummation of any disposition of Property or series of related dispositions of Property not permitted by the terms of this Agreement.
(c) Upon the occurrence of a Change in Control, prepayments the Borrower shall immediately prepay the outstanding principal amount of the Term Loans.
(d) Each prepayment of the Loans pursuant to this Section 2.6(c) 3.02 shall be applied first to Base Rate Advances in accordance with Section 2.06 and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited accompanied by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) payment of accrued interest to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and Prepayment Date on the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Vista Proppants & Logistics Inc.)
Mandatory Prepayments. (i) [Reserved]If on any day an EBITDA Deficit exists, Borrowers shall immediately pay to Agent an amount equal to such EBITDA Deficit to be applied to the outstanding principal amount of the Term Loans and the Revolver Usage in accordance with clause (d) below.
(ii) In the event that, after the Agreement Date, Immediately upon any Borrower sale or disposition by any Loan Party or any Subsidiary of a Borrower Party shall incur any Funded Debt its Subsidiaries of property or assets (other than Funded Debt permitted under Section 8.1sales or dispositions of Inventory in the ordinary course of business), one hundred percent Borrowers shall prepay the outstanding principal amount of the Term Loans and the Advances and cash collateralization of the Letters of Credit in accordance with clause (d) below in an amount equal to 100%) % of the Net Cash Proceeds received by any Borrower Party such Person in connection with such sales or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party dispositions to the Lenders extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to Agent as a mandatory prepayment of the Obligations Term Loans and the Advances and cash collateralize the Letters of Credit) for all such sales or dispositions shall exceed $100,000 in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise Fiscal Year (other than sales or dispositions of Inventory or insurance proceeds or condemnation awards with respect to the saleInventory, transfer or disposition of assets permitted under clauses (i) and which shall not be subject to such threshold). Nothing contained in this subclause (ii) of Section 8.7(b)), or casualty or condemnation loss of shall permit any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Loan Party or any of its Subsidiaries shall be paid within five (5) Business Days to sell or otherwise dispose of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations any property or assets other than in accordance with Section 2.6(b). Notwithstanding 7.4.
(iii) Upon the foregoingreceipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, unless an Event Borrowers shall prepay the outstanding principal of Default shall have occurred the Term Loans and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under Advances and cash collateralize the Letters of Credit in accordance with clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations below in an amount equal to fifty percent (50%) 100% of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculatedExtraordinary Receipts, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion net of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)reasonable expenses incurred in collecting such Extraordinary Receipts.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Advanced Lighting Technologies Inc)
Mandatory Prepayments. There shall become due and payable and Borrower shall prepay the Term Loan (and the Revolving Loans, Swingline Loans and WCMA Loans) in the following amounts and at the following times:
(i) [Reserved].on the date on which any Credit Party (or Administrative Agent as loss payee or assignee) receives any Major Casualty Proceeds, an amount equal to one hundred percent (100%) of such Major Casualty Proceeds; provided, that, so long as no Default or Event of Default has occurred and is continuing, the recipient (other than Administrative Agent) of any Major Casualty Proceeds may reinvest the amount of such Major Casualty Proceeds within ninety (90) days, in replacement assets comparable to the assets giving rise to such Major Casualty Proceeds; provided, that the aggregate amount which may be reinvested by Borrower and its Subsidiaries pursuant to the preceding proviso may not exceed $350,000 in any Fiscal Year; provided, further, that if the applicable Credit Party does not intend to fully reinvest such Major Casualty Proceeds, or if the time period set forth in this sentence expires without such Credit Party having reinvested such Major Casualty Proceeds, Borrower shall prepay the Loans in an amount equal to such Major Casualty Proceeds (to the extent not reinvested or intended to be reinvested within such time period);
(ii) In upon receipt by any Credit Party of the event thatproceeds from the issuance and sale of any Debt or equity securities (other than (1) proceeds of Debt securities expressly permitted pursuant to Section 5.1, after (2) proceeds from the Agreement Date, any issuance of equity securities to Borrower Party or any Subsidiary Wholly-Owned Subsidiary, and (3) proceeds from the issuance of equity securities of Borrower (or a Borrower Party shall incur parent company of Borrower) upon the exercise of any Funded Debt other than Funded Debt permitted under Section 8.1stock option to acquire securities of Borrower), in each case in an amount equal to one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or of such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).issuance and sale;
(iii) One upon receipt by any Credit Party of the proceeds of any Asset Disposition, an amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Asset Disposition; provided, that no prepayment shall be required pursuant to this Section 2.1(c)(iii) unless and until the aggregate Net Cash Proceeds received during any Fiscal Year from any sale, transfer, assignment or other disposition, whether voluntary, as a result Asset Dispositions exceeds $350,000 (in which case all Net Cash Proceeds in excess of any enforcement action by any member of the Lender Group or otherwise (other than with respect such amount shall be used to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of make prepayments pursuant to this Section 8.7(b2.1(c)(iii)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoingand provided, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assetsthat, so long as no Default or Event of Default has occurred and is continuing, the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder recipient of the intent to reinvest such Net Cash Proceeds in similar assets for may reinvest the business amount of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into within ninety (90) days, in replacement fixed assets of a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations kind then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful used or usable in the business of such Credit Party. If the applicable Credit Party does not intend to so reinvest such Net Cash Proceeds, or if the time period set forth in the immediately preceding sentence expires without such Credit Party having reinvested such Net Cash Proceeds, Borrower Party and (C) shall, upon shall prepay the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or Loans in an amount equal to such Net Cash Proceeds shall be appliedProceeds; and
(iv) to the prepayment upon receipt by any Credit Party of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Periodany Extraordinary Receipts, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One one hundred percent (100%) of the such Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall Receipts. Any amounts permitted to be paid within five (5) Business Days of receipt thereof by the Borrower Parties reinvested pursuant to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause preceding clauses (a), (bi) or (diii) of the definition thereofshall be immediately applied by Borrower as a prepayment against then outstanding Revolving Loans and then, so long as the Borrower Parties (a)(i) notify the any remainder to WCMA Loans, and Administrative Agent shall establish a Reserve (the “Reinvestment Reserve”) against the Revolving Loan Limit and the WCMA Loan Limit in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts permitted reinvestment amount. So long as no Default or Event of Default then exists, Administrative Agent shall be applied) permit Revolving Loan Borrowings to finance the making of reinvestments permitted pursuant to the prepayment of the Obligations as set forth above in Section 2.6(bpreceding clauses (i) and (b) deliver a certificate from iii), and shall concurrently reduce the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days Reinvestment Reserve by an equivalent amount. Any remaining portion of the date of receipt of such proceeds Reinvestment Reserve shall be reduced to zero (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b0) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required reinvestment periods pursuant to the terms hereof, other than mandatory prepayments required under clause preceding clauses (vi) of this Section 2.6(cand (iii).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.”
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
Within forty-five (ii45) In days of the event that, after the Agreement Date, financial closing of any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt Equity Issuance other than Funded Debt permitted under Section 8.1a Restricted Payment Equity Issuance, one hundred percent (100%) the Borrower shall apply an amount equal to not less than the Applicable Equity Issuance Percentage of the Net Cash Proceeds received by of such Equity Issuance, at the Borrower’s election, exercisable on or prior to the receipt of such Net Cash Proceeds, (i) to prepay the Loans and any Borrower Party MPP Debt (to the extent that the terms of such MPP Debt require such prepayment and, in any event, only on a Pro Rata Basis) and/or (ii) to pay (or reserve to pay in a Debt Service Reserve Account) scheduled debt service obligations of the Obligors under Other Bilateral Debt, Permitted Refinancing Debt or the Loans due within the 12-month period immediately following the date of the financial closing of such Subsidiary from Equity Issuance; provided that, if and to the extent that the proceeds of any such incurrence Equity Issuance are to be used to fund Investment CAPEX or an Approved CAPEX Project, such proceeds shall be paid within one (1) Business Day excluded in determining the amount of receipt of the proceeds thereof by such Borrower Party to the Lenders as a any mandatory prepayment of the Obligations in accordance with required pursuant to this Section 2.6(b3.4(a).
(iiib) One hundred percent Within forty-five (45) days of the receipt by any Aracruz Party of Net Cash Proceeds from an Asset Sale (including receipt by any such Aracruz Party of proceeds from an Asset Sale involving the assets of Veracel), the Borrower shall apply the Net Cash Proceeds of such Asset Sale as follows:
(i) 100%) % of the Net Cash Proceeds from an Asset Sale involving all or any saleportion of Collateral (which Asset Sale shall, transferfor the avoidance of doubt, assignment or be carried out in accordance with Section 8.18) to prepay obligations under the Loans and, if and to the extent mutually agreed by the parties in an Intercreditor Agreement, any other disposition, whether voluntary, as a result Permitted Refinancing Debt that may be secured by the Collateral pursuant to the terms of such Intercreditor Agreement and in accordance therewith;
(ii) 75% of the Net Cash Proceeds of any enforcement action by Asset Sale involving all or any member portion of the Lender Group Capital Stock directly or otherwise indirectly held by Aracruz Celulose in Portocel (other than which Asset Sale shall, for the avoidance of doubt, be carried out in accordance with respect Section 8.18) or in Veracel to prepay the Loans and any MPP Debt (to the saleextent that the terms of such MPP Debt require such prepayment and, transfer or disposition in any event, only on a Pro Rata Basis); and
(iii) 75% of assets permitted under the Net Cash Proceeds of any Asset Sale not referred to in clauses (i) and or (ii) above to, at the Borrower’s election exercisable on or prior to the time of Section 8.7(b)the closing of such Asset Sale, to (A) prepay the Loans and any MPP Debt (to the extent that the terms of such MPP Debt require such prepayment and, in any event, only on a Pro Rata Basis) and/or (B) pay (or reserve to pay in a Debt Service Reserve Account) scheduled debt service obligations of the Obligors under Other Bilateral Debt, Permitted Refinancing Debt or the Loans due within the 12-month period immediately following the date of the financial closing of such Asset Sale.
(c) Within forty-five (45) days of the receipt by any Aracruz Party of Net Cash Proceeds from a Casualty Event (including receipt by any such Aracruz Party of proceeds from an Asset Sale involving a Casualty Event of Veracel), or casualty or condemnation loss the Borrower shall prepay an aggregate principal amount of the Loans in an amount equal to the amount of any Collateral such Net Cash Proceeds; provided, however, that, if and for so long as no Default or Event of Default is continuing hereunder and the Borrower has delivered a certificate to the Administrative Agent within fifteen Business Days of the occurrence of such Casualty Event stating that, within 180 days after the occurrence of such Casualty Event (or such other period set forth in such certificate if the Borrower reasonably determines that the Restoration of the affected Properties or assets cannot reasonably be concluded within 180 days, provided that such certificate outlines in reasonable detail the projected steps for the completion of such Restoration) (the “Relevant Reinvestment Period”), all or a portion of such Net Cash Proceeds (but in no event more than U.S.$75 million without the consent of the Majority Lenders) shall be used to Restore any Properties or assets in respect of which such Net Cash Proceeds were paid (which certificate shall set forth a detailed estimate of the Net Cash Proceeds to be so expended), all or such portion of such Net Cash Proceeds may be used to Restore any such affected Properties or assets during the Relevant Reinvestment Period; provided further, that if all or any portion of such Net Cash Proceeds is not ultimately required to be so applied within the Relevant Reinvestment Period pursuant to the preceding proviso, any remaining portion of such Net Cash Proceeds shall, within 10 days after the last day of the Relevant Reinvestment Period, be applied to prepay the Loans in an amount equal to the amount of such remaining portion of such Net Cash Proceeds.
(d) Within ten (10) days of the financial closing of the issuance or borrowing of Permitted Refinancing Debt (any such date, an “Incurrence Date”):
(i) if such Permitted Refinancing Debt is Subsequently Issued Pari Passu Refinancing Debt, the Borrower shall apply 100% of the Net Cash Proceeds of such Subsequently Issued Pari Passu Refinancing Debt to prepay the Loans; and
(ii) if such Permitted Refinancing Debt is not Subsequently Issued Pari Passu Refinancing Debt, the Borrower shall, at the Borrower’s option exercisable on or prior to the receipt of such Net Cash Proceeds, apply 100% of the Net Cash Proceeds of such Permitted Refinancing Debt to (A) prepay the Loans and any MPP Debt (to the extent that the terms of such MPP Debt require such prepayment and, in any event, only on a Pro Rata Basis) and/or (B) pay (or reserve to pay in a Debt Service Reserve Account) scheduled debt service obligations of the Obligors under Other Bilateral Debt, Permitted Refinancing Debt or the Loans due within the 12-month period immediately following such Incurrence Date.
(e) Within forty-five (45) days of any optional prepayment of Permitted Refinancing Debt the effect of which is to cause (taking into account such prepayment) the weighted average maturity of such Permitted Refinancing Debt to be less than the weighted average maturity of the Loans, in each case, as calculated on the Incurrence Date of such Permitted Refinancing Debt, the Borrower Party shall prepay the Loans in an amount equal to the portion of such optional prepayment that caused the weighted average maturity of such Permitted Refinancing Debt to be less than the weighted average maturity of outstanding obligations under the Loans.
(f) Within fifty (50) days of the date on which Aracruz Celulose has delivered its audited annual consolidated financial statements pursuant to Section 8.4 and in no event later than 140 days following the end of each Fiscal Year (such outside date, the “Original Excess Cash Payment Date”), the Borrower shall apply 75% of any Excess Cash attributable to such Fiscal Year to prepay the Loans; provided, however, that, if the making of such payment would cause the Aracruz Parties on a consolidated basis to have less than the Working Capital Cap in cash or Cash Equivalents as of the date of such payment, the Borrower may, by written notice to the Administrative Agent providing a certificate of the Chief Financial Officer of Aracruz Celulose to such effect, elect to defer such mandatory prepayment until the last day of the third Fiscal Quarter of the then-current Fiscal Year (the “New Excess Cash Payment Date”), in which case, on or prior to the New Excess Cash Payment Date, the Borrower shall apply 75% of any Excess Cash attributable to such immediately preceding Fiscal Year plus interest on 75% of such Excess Cash attributable to such immediately preceding Fiscal Year from the Original Excess Cash Payment Date to the New Excess Cash Payment Date (or, if earlier, the date on which the application of 75% of any Excess Cash attributable to the preceding Fiscal Year is made in full) at a per annum rate equal to the Default Rate (without duplication with the interest otherwise payable with respect to such Excess Cash) to prepay the Loans; provided that in no event shall the Borrower be entitled to exercise the election permitted in this clause (f) more than two (2) times prior to the Maturity Date.
(g) Upon receipt of a written request from the Administrative Agent (which shall be provided by the Administrative Agent to the Collateral Agents on a monthly basis or more frequently upon written request of the Majority Lenders to the Administrative Agent), the Collateral Agents (upon reliance on any certificates of the Chief Financial Officer of Aracruz Celulose delivered to any such Collateral Agent pursuant to Section 3.4(i)) shall inform the Administrative Agent whether or not the funds deposited in any Debt Service Reserve Accounts have been used for the contemplated purpose during the contemplated period pursuant to any DSRA Application Notices delivered to the Collateral Agents pursuant to Section 3.4(i). Immediately, and in no event later than eight (8) Business Days after receipt of a written notice from the Administrative Agent (as informed by the applicable Collateral Agent pursuant to the previous sentence) that funds reserved in a Debt Service Reserve Account have not been used for the contemplated purpose during the contemplated period pursuant to the terms of this Agreement, the Borrower shall prepay the Loans and any MPP Debt (to the extent that the terms of such MPP Debt require such prepayment and, in any event, only on a Pro Rata Basis) in an amount equal to the amount that was not used for the contemplated purpose as set forth in such notice.
(h) Any mandatory prepayment as provided for in this Section 3.4 shall be made together with accrued and unpaid interest on the principal amount so prepaid and all other amounts then payable under this Agreement (including Section 4.4) but without premium or penalty (subject to Section 4.4) and shall be applied to prepay the remaining installments of the Loans in the inverse order of maturity; provided that if any such prepayment would cause the Maturity Date to be earlier than the date that is the seven (7)-year anniversary of the Closing Date, such prepayment shall be applied pro rata to the remaining installments of the Loans. The Borrower shall give the Administrative Agent notice of the proposed date of each such mandatory prepayment provided for in this Section 3.4 as provided in Section 3.7 and, upon the date specified in any such notice, the amount to be prepaid shall become due and payable hereunder.
(i) If, pursuant to this Section 3.4, the Borrower elects to reserve in a Debt Service Reserve Account funds to (i) pay scheduled debt service obligations of the Obligors under Other Bilateral Debt, Permitted Refinancing Debt or the Loans or (ii) make mandatory prepayments hereunder pursuant to Section 3.4(k), in each case if and to the extent permitted by this Section 3.4, the Borrower shall (A) at the time of such election, specify the due date, principal amount or the amount of the mandatory prepayment to be made pursuant to Section 3.4(k), as the case may be, and creditor corresponding to each such debt service obligation in each case in writing to the Administrative Agent and Collateral Agents (each such written specification, a “DSRA Application Notice”) and (B) except as provided in clause (g) above, be entitled to withdraw such funds from the relevant Debt Service Reserve Accounts pursuant to the U.S. Account Control Agreement and Brazil Account Pledge Agreement only as necessary to pay such specified debt service obligations or to make such mandatory prepayments on such specified due dates and at no other time and for no other purpose, it being understood and agreed that, to the extent any funds are reserved in a Debt Service Reserve Account to make scheduled debt service payments or mandatory prepayments under the Loans, such funds shall be reserved in a Debt Service Reserve Account in New York for such purposes. Notwithstanding anything herein to the contrary, unless and until such funds are paid to such creditors, all funds in the Debt Service Reserve Accounts shall constitute part of the Collateral and no other Person other than the Collateral Agents (acting on behalf of the Lenders) shall have any right, title or interest in such account or the funds contained therein. The relevant Collateral Agent shall consent to any withdrawal from a Debt Service Reserve Account contemplated in this Section 3.4(i) if and as requested in writing by the Borrower or any Debt Service Reserve Account intermediary, within two (2) Business Days of receipt thereof by any Borrower Party as of a mandatory prepayment certificate of the Obligations Chief Financial Officer of Aracruz Celulose that such withdrawal is to be carried out in accordance compliance with this Section 2.6(b). Notwithstanding the foregoing, unless an 3.4(i) as well as any additional documentation as such Collateral Agent requires for payments to third parties.
(j) If no Default or Event of Default shall have occurred exists and be continuing or would result therefromis continuing, then the relevant Collateral Agent shall, at the written direction of the Borrower Parties may elect from time to reinvest Net Cash Proceeds from time (including by facsimile or electronic communication), cause the funds in any such saleDebt Service Reserve Accounts to be invested or reinvested in one (1) or more Permitted Investments or, transfer, assignment or other disposition or any such casualty or condemnation loss in the case of any Debt Service Reserve Account maintained in Brazil, Brazil Permitted Investments, in each case selected by the Borrower; provided that in no event shall either Collateral or such other assets, so long Agent: (i) have any responsibility whatsoever as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date validity or quality of any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and Permitted Investment, (ii) confirm that such Net Cash Proceeds have been deposited into be liable for the selection of Permitted Investments or for investment losses incurred thereon or in respect of losses incurred as a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment result of the Obligations then outstanding, (B) may be withdrawn by liquidation of any Permitted Investment before its stated maturity or the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business failure of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to provide timely written investment direction or (iii) have any obligation to invest or reinvest any such amounts in the Administrative Agent that states absence of such investment direction.
(k) Notwithstanding anything herein to the contrary, in the event that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by on a certificate signed by an Authorized Signatory of date other than a Payment Date, then the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculatedmay, which certificate shall be in form and substance satisfactory upon notice to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest , elect to make such payment into a Debt Service Reserve Account maintained in New York, New York on or before the date such payment is due, and on the principal amount of next Payment Date following such date, the Loans being prepaid and applied Borrower shall apply the funds deposited in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans such Debt Service Reserve Account pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c3.4(k) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any such mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)prepayment.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Export Prepayment Facility Agreement and Secured Loan (Votorantim Pulp & Paper Inc)
Mandatory Prepayments. (i) [Reserved]If the Target has directly or indirectly through the sale, transfer or other disposition of any of its Subsidiaries (or the sale, transfer or other disposition of their respective assets and properties (including Real Property)) sold, transferred or otherwise disposed of (in a single transaction or a series of transactions) greater than 50% of the gross book value of all of its assets and properties (including all Real Property) as of the Effective Date, then, as long as any amounts are outstanding under this Note, the Borrower shall concurrently with the consummation of such sale, transfer or other disposition, prepay the unpaid principal balance of the Loan in accordance with Section 5(a), in an amount equal to, the aggregate unpaid principal amount of the Loan (as increased by any PIK Interest pursuant to Section 3(c)), all accrued and unpaid interest and all other amounts outstanding under this Note on such date); provided, however, that no such mandatory prepayment pursuant to this Section 2(b)(i) shall be required in connection with a, direct or indirect, sale, transfer or other disposition (that would otherwise trigger a mandatory prepayment pursuant to this Section 2(b)(i)) of any of the Target’s assets to an Affiliate (an “Affiliate Transferee”), if such Affiliate Transferee (i) becomes jointly and severally liable, with Borrower, for all obligations to the Noteholders under this Note pursuant to documentation in form and substance reasonably satisfactory to the Noteholders (including any amendments to this Note) and (ii) makes the representations and warranties to the Noteholders set forth in Section 6 of this Note as of the date of any such sale, transfer or other dispositions (any such transfer, a “Permitted Affiliate Transfer”).
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance connection with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment transfer or other disposition, whether voluntaryother than a Permitted Affiliate Transfer, as a result of any enforcement action by interest in any member of the Lender Group Real Property owned directly or otherwise indirectly by the Target (other than with respect to or the sale, transfer or other disposition of assets permitted under clauses (iany interest in any Subsidiary of the Target that owns any of such Real Property) and (ii) as of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as the Effective Date that does not trigger a mandatory prepayment pursuant to Section 2(b)(i), then, as long as any amounts are outstanding under this Note, the Borrower shall concurrently with Borrower’s receipt of the Obligations Net Distributable Proceeds from such sale, transfer or other disposition, prepay a portion of the unpaid principal amount of the Loan in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a5(a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to to, fifty percent (50%) of Excess Cash Flow for the Net Distributable Proceeds from such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculatedsale, which certificate shall be in form and substance satisfactory to the Administrative Agenttransfer or other disposition.
(viiii) Any payments due under this Section 2.6(cTo the extent permitted by applicable law, the organizational documents of any Subsidiary or existing or future joint venture with an unaffiliated third party and any limitations of any loan documents evidencing and/or securing any indebtedness for borrowed money of any Subsidiaries or joint venture (the “Distribution Restrictions”), Borrower agrees to cause the Target to, and to cause each of its Subsidiaries that receives any net proceeds from any such transaction to, use commercially reasonable efforts to distribute to its parent entity such net proceeds until such net proceeds are received by the Borrower as promptly following the consummation of such sale, transfer or other disposition. For the avoidance of doubt, (A) Borrower shall be accompanied by all accrued interest on not voluntarily create any Distribution Restrictions with the principal amount primary intention of circumventing Borrower’s requirement to prepay the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c2(b), and (B) shall if any Distribution Restrictions apply, no distributions will be applied made to the Borrower or any direct or indirect equityholders of the Borrower without first prepaying the Loan pursuant to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents2(b). Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice notify the Noteholders in writing in advance of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto)direct or indirect sale, and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making transfer or disposition of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date Real Property and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide anticipated Net Distributable Proceeds resulting from such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereundertransaction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (DigitalBridge Group, Inc.)
Mandatory Prepayments. (i) [Reserved]On the date of receipt by any Credit Party or any of their Subsidiaries of any net cash proceeds in excess of $200,000 in the aggregate during any Fiscal Year from any Asset Sales (other than Permitted Dispositions), the Borrowers shall prepay the Notes as set forth in Section 2.3(e) in an aggregate amount equal to 100% of such net cash proceeds.
(ii) In On the event that, after the Agreement Date, date of receipt by any Borrower Credit Party or any Subsidiary of a Borrower Party their Subsidiaries, or the Agent as loss payee, of any net cash proceeds from any Destruction or Taking, the Borrowers shall incur any Funded Debt other than Funded Debt permitted under prepay the Notes as set forth in Section 8.12.3(e) in an aggregate amount equal to 100% of such net cash proceeds; provided, one hundred percent so long as no Event of Default (100%or event or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) shall have occurred and be continuing on the date of receipt thereof or caused thereby, the Borrowers shall have the option to apply such net cash proceeds, prior to the date that is 90 days following receipt thereof, for purposes of the Net Cash Proceeds received by any Borrower Party repair, restoration or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt replacement of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)applicable assets thereof. [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
(iii) One hundred percent On the date of receipt by any Credit Party or any of their Subsidiaries of any net cash proceeds in excess of $5,000,000 in the aggregate during the term of this Agreement from a capital contribution by any Person (100%other than a Subsidiary of Elevate Credit) to, or the issuance to any Person (other than a Credit Party or a Subsidiary of a Credit Party) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result Equity Interests of any enforcement action Credit Party or any of their Subsidiaries, the Borrowers shall prepay the Notes as set forth in Section 2.3(e) in an aggregate amount equal to 100% of such net cash proceeds.
(iv) On the date of receipt by any member Credit Party or any of their Subsidiaries of any net cash proceeds from the Lender Group incurrence of any Indebtedness of any Credit Party or otherwise any of their Subsidiaries (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)Permitted Indebtedness), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party the Borrowers shall be paid within two (2prepay the Notes as set forth in Section 2.3(e) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an aggregate amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date 100% of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodnet cash proceeds.
(v) On the date that is ten of receipt by any Credit Party or any of their Subsidiaries of any Extraordinary Receipts, the Borrowers shall prepay the Notes as set forth in Section 2.3(e) in an aggregate amount equal to 100% of such Extraordinary Receipts.
(10vi) Business Days after If at any time the earlier then outstanding principal balance of (A) the date on which US Term Notes shall exceed the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30Maximum US Term Note Commitment, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(bUK Term Notes shall exceed the Maximum UK Commitment, (C) the US Last Out Term Notes shall exceed the Maximum US Last Out Term Note Commitment or (D) the “ECF Prepayment Date”)First Out Notes shall exceed the Maximum First Out Note Balance, then in each case the applicable Borrower Parties or Borrowers shall make a mandatory prepayment of immediately prepay the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner applicable Notes as set forth in Section 2.10 and shall be subject 2.3(e) in an amount sufficient to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)eliminate such excess.
(vii) The Borrower shall give prior written notice of Concurrently with any prepayment required under of the Notes pursuant to this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto2.3(b), andthe Borrower Representative, except with respect to prepayments required pursuant to clause (v) aboveon behalf of the Borrowers, shall deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by of an Authorized Signatory of the Borrower setting forth in reasonable detail authorized officer thereof demonstrating the calculation of the amount of the applicable proceeds. In the event that the Credit Parties shall subsequently determine that the actual amount of such prepayment. Each notice proceeds exceeded the amount set forth in such certificate (including as a result of the conversion of non-cash proceeds into cash), the applicable Borrower(s) shall promptly make an additional prepayment shall specify of all the prepayment date Notes in an amount equal to such excess (or applicable percentage thereof), and the principal amount Borrower Representative, on behalf of the Term Loans to be prepaid. Notwithstanding anything Borrowers, shall concurrently therewith deliver to the contrary herein, failure to provide Agent a certificate of an authorized officer thereof demonstrating the derivation of such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderexcess.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
Within five (ii5) In the event that, Business Days after the Agreement Date, receipt by any Borrower Loan Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by of any Asset Sale consummated in reliance on Section 7.6(q) or any Recovery Event, the Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of prepay the Obligations in accordance with Section 2.6(b).
clause (iiie) One below in an amount equal to one hundred percent (100100.0%) of the such Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the saleextent, transfer and in the amount by which, such Net Cash Proceeds exceed $2,000,000 in the aggregate in any Fiscal Year; provided, that, so long as no Default or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromcontinuing, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall not be applied) required to be applied as a mandatory prepayment hereunder at the prepayment election of the Obligations Borrower (as set forth above in Section 2.6(b) and (b) deliver a certificate from notified by the Borrower to the Administrative Agent that states that in writing substantially concurrently with the Borrower Parties have reinvested receipt of such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of from such sale Asset Sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”Recovery Event). If and , to the extent that such Net Cash Proceeds are not fully reinvested during in Property (but excluding Current Assets, cash and Cash Equivalents) within three-hundred sixty-five (365) calendar days after the date of receipt of such Net Cash Proceeds, provided, that, if such Net Cash Proceeds Reinvestment Periodshall not have been so reinvested, an amount equal then such prepayment shall be due immediately with respect to such remaining portion of such Net Cash Proceeds not so reinvested that is required to be applied to in excess of $2,000,000 upon the expiration of the applicable period.
(b) Immediately upon the receipt by any Loan Party or Subsidiary of Net Cash Proceeds of any issuance of Indebtedness (other than Indebtedness permitted under Section 7.1), the Borrower shall prepay the Obligations in accordance with Section 2.6(bclause (e) immediately upon the expiration below in an amount equal to one hundred percent (100.0%) of the such Net Cash Proceeds Reinvestment PeriodProceeds.
(ivc) One hundred percent Commencing with the Fiscal Year ending December 31, 2026 (100%and, in each case, determined with respect to the audited financial statements delivered pursuant to Section 5.1(a) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid with respect to such Fiscal Year), within five fifteen (515) Business Days after the date on which financial statements have been delivered (or are required to have been delivered) pursuant to Section 5.1(a), and the related Compliance Certificate has been delivered (or is required to have been delivered) pursuant to Section 5.1(c), in each case of receipt thereof by the foregoing, with respect to such Fiscal Year, the Borrower Parties to the Lenders as a mandatory prepayment of shall prepay the Obligations in accordance with clause (e) below in an amount (if positive) equal to: (i) the product of (A) the Consolidated Excess Cash Flow Percentage for such Fiscal Year, multiplied by (B) Consolidated Excess Cash Flow for such Fiscal Year; minus (ii) the sum of (A) the aggregate amount of any optional prepayments made on the Term Loans pursuant to Section 2.6(b2.11 during such period, plus (B) the aggregate amount of any optional prepayments made on Revolving Loans that are accompanied by a Dollar-for-Dollar reduction of the Aggregate Revolving Commitment Amount pursuant to Section 2.8 during such period.
(d) Within one (1) Business Day after the receipt by any Loan Party or Subsidiary of any Cure Proceeds in connection with any exercise of a Cure Right, the Borrower shall prepay the Obligations in accordance with clause (e) below in an amount equal to one hundred percent (100.0%) of such Cure Proceeds.
(e) Any prepayments made by the Borrower pursuant to the foregoing clauses (a) through (d) shall, in each case, be applied as follows: (i) first, to the principal balances of the Term Loan A and any then-outstanding Incremental Term Loans, pro rata as between such Term Loans to the Lenders based on their respective Pro Rata Shares thereof, and further applied (in the case of each such Term Loan) to the remaining scheduled principal installments thereof (including, with respect to each Term Loan, to the principal installment thereof due and payable on the applicable Maturity Date) on a pro rata basis, until such Obligations shall have been Paid in Full; (ii) second, to the principal balance of the Swingline Loans, until such Obligations shall have been Paid in Full, to the Swingline Lender; (iii) third, to the principal balance of the Revolving Loans, until such Obligations shall have been Paid in Full, pro rata to the Lenders based on their respective Revolving Commitments; and (iv) fourth, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date, plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to the foregoing clauses (e)(ii) through (e)(iv). Notwithstanding the foregoing, unless an Event of Default shall have has occurred and be is continuing or would result therefromand the Required Lenders so request in connection with any such prepayment of Revolving Loans.
(f) If, at any time, the Borrower Parties may elect Aggregate Revolving Credit Exposure exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to reinvest amounts constituting Extraordinary Receipts under clause (a)Section 2.8 or otherwise, (b) or (d) of the definition thereof, so long as then the Borrower Parties shall immediately repay the outstanding Swingline Loans and Revolving Loans (a)(iand/or Cash Collateralize the issued and outstanding Letters of Credit, as applicable) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment made pursuant to this clause (f) shall be appliedapplied as follows:
(i) first, to the Swingline Loans to the full extent thereof; (ii) second, to the Base Rate Loans to the full extent thereof; (iii) third, to the SOFR Index Loans to the full extent thereof; and (iv) fourth, to the Term SOFR Loans to the full extent thereof. If, after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from Aggregate Revolving Credit Exposure exceeds the Aggregate Revolving Commitment Amount, the Borrower shall Cash Collateralize its reimbursement obligations with respect to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts all Letters of Credit in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodexcess, plus any accrued and unpaid fees thereon.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Cardinal Infrastructure Group Inc.)
Mandatory Prepayments. (a) Except with the prior written approval of the Majority Banks, which approval may be withheld in the sole and absolute discretion of the Majority Banks, if at any time the outstanding principal amount of the Mezzanine Mortgage Loan is prepaid in full, whether voluntarily, involuntarily or as the result of an acceleration of the maturity date thereof, all of the outstanding Obligations together with any and all accrued but unpaid interest thereon and prepayment fees shall become absolutely due and payable. For the purposes hereof, and without limiting the generality of the foregoing, the Mezzanine Mortgage Loan shall be deemed to have been prepaid in the event that (i) [Reserved]a Nomura Mortgage or the Nomura Mortgages are assigned by the holder thereof to a new holder for the purpose of facilitating a refinance of the indebtedness secured thereby or (ii) the Property Owner defeases the Mezzanine Mortgage Loan as permitted by Section 2.3.3 of the Mezzanine Mortgage Loan Agreement.
(iib) In the event thatIf at any time there shall occur, after the Agreement Datewhether voluntarily, any Borrower Party involuntarily or any Subsidiary by operation of law, a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment assignment, conveyance, option or other dispositiondisposition of, whether voluntaryor any mortgage, as a result hypothecation, encumbrance, financing or refinancing of (i) any enforcement action by any member assets or properties of the Lender Group or otherwise (other than Property Owner, except for the Mezzanine Mortgage Loan and releases of the Mezzanine Property in accordance with the terms of this Agreement, and except as provided in Section 7.23(a) with respect to the salereplacement of fixtures, transfer or disposition of assets permitted under clauses (i) equipment, machinery and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof personal property by any Borrower Party as a mandatory prepayment the Property Owner in connection with the operation of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party Mezzanine Property in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and , (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute any of the Mezzanine Collateral, securing (iii) any other assets or properties of the payment Manager or the Member, (iv) any direct or indirect interest of either Borrower, the Manager or the Member in the Property Owner, (v) any direct or indirect interest of the Member in the Manager, or (vi) any direct or indirect interest of Borrower in the Member, all of the Obligations then outstandingoutstanding on such date, (B) may be withdrawn together with any and all accrued but unpaid interest thereon and prepayment fees, shall become absolutely due and payable. A pledge or transfer by the applicable Borrower Party solely to reinvest WWP of its interest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are Secured Mezzanine Loan Agreement Lenders shall not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as cause a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c3.2(b).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved]If, as of the last day of any month, (A) the sum of the outstanding principal balance of the Term Loans on such date plus the Revolver Usage on such date exceeds (B) the product of (I) 3.00 times (II) TTM PF EBITDA calculated as of the last month for which financial statements have most recently been delivered pursuant to Section 5.3 (the “Loan Limit” and such excess being referred to as the “Limiter Excess”), then Borrowers shall, as soon as practicable, but in any event within one (1) Business Day after exceeding the Loan Limit, prepay the Obligations in accordance with Section 2.4(d)(i) in an aggregate amount equal to the Limiter Excess.
(ii) In As soon as practicable, but in any event within one (1) Business Day after the receipt by any Credit Party or any of its Subsidiaries of the proceeds of any voluntary or involuntary sale or disposition by any Credit Party or any of its Subsidiaries of property or assets (including casualty losses or condemnations and any proceeds received in connection with any of the policies referred to in Section 5.8(a) (other than key man life insurance) but excluding (x) sales or dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), or (d) of the definition of Permitted Dispositions and (y) so long as no Default or Event of Default has occurred and is continuing, sales or dispositions which qualify as Permitted Dispositions under clause (e) of the definition of Permitted Dispositions, but solely to the extent that the Net Cash Proceeds from all Permitted Dispositions under such clause (e) do not exceed $3,000,000 in the aggregate during the term of this Agreement), Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d)(ii) in an amount equal to 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) Administrative Borrower shall have given Agent prior written notice of Borrowers’ intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such sale, disposition, casualty loss, condemnation or business interruption or the cost of purchase or construction of other assets useful in the business of Borrowers or their Subsidiaries, (C) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (D) Borrowers or their Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, Borrowers and their Subsidiaries shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale, disposition, casualty loss, condemnation or business interruption or the costs of purchase or construction of other assets useful in the business of Borrowers and their Subsidiaries unless and to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, any amounts remaining in the cash collateral account shall be paid to Agent and applied in accordance with Section 2.4(d)(ii); provided, further, that the aggregate amount of Net Cash Proceeds constituting proceeds of insurance received in connection with any of the policies referred to in Section 5.8(a) (other than key man life insurance) or otherwise constituting proceeds from a casualty loss, condemnation or business interruption that may be reinvested pursuant to this Section 2.4(c)(ii) shall not exceed $5,000,000 without the Agent’s prior written consent during the term of this Agreement. Nothing contained in this Section 2.4(c)(ii) shall permit any Credit Party or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(iii) As soon as practicable, but in any event within one (1) Business Day after the receipt by any Credit Party or any of its Subsidiaries of any Extraordinary Receipts, Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d)(ii) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iv) As soon as practicable, but in any event within one (1) Business Day after the issuance or incurrence by any Credit Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness permitted under Section 6.1) or the issuance by a Credit Party or any of its Subsidiaries of any shares of such Credit Party’s Stock or its Subsidiaries’ Stock (other than (A) in the event that, after the Agreement Date, that any Borrower Credit Party or any Subsidiary of a Borrower Credit Party forms a Subsidiary in accordance with the terms hereof, the issuance by such Subsidiary of Stock to a Credit Party or such Subsidiary, as applicable, (B) the issuance of Stock of Parent in order to finance the purchase consideration (or a portion thereof) payable in connection with a Permitted Acquisition or (C) the issuance of shares of Stock of a Credit Party or a Subsidiary of a Credit Party to Prentice or its Affiliates), Borrowers shall incur any Funded Debt other than Funded Debt permitted under prepay the outstanding principal amount of the Obligations in accordance with Section 8.1, one hundred percent (2.4(d)(ii) in an amount equal to 100%) % of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The provisions of this Section 2.4(c)(iv) shall not be deemed to be implied consent to any Borrower Party such issuance or such Subsidiary from such incurrence shall be paid within one otherwise prohibited by the terms and conditions of this Agreement.
(1v) Business Day Within 10 days of receipt delivery to Agent and the Lenders of audited annual financial statements pursuant to Section 5.3, commencing with the delivery to Agent and the Lenders of the proceeds thereof by financial statements for Parent’s fiscal year ended February 28, 2008 or, if such Borrower Party financial statements are not delivered to Agent and the Lenders as a mandatory prepayment on the date such statements are required to be delivered pursuant to Section 5.3, 10 days after the date such statements are required to be delivered to Agent and the Lenders pursuant to Section 5.3, Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.6(b2.4(d)(ii) in an amount equal to 75% of the Excess Cash Flow of Borrowers and their Subsidiaries for such fiscal year; provided, however, that if on such date (i) the outstanding principal balance of the Term Loans on such date plus the Revolver Usage on such date is less than (ii) (A) 2.00 times (B) TTM PF EBITDA on such date, the Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d)(iii) in amount equal to 50% of the Excess Cash Flow of Borrowers and their Subsidiaries for such fiscal year; and provided, further, that for Parent’s fiscal year ended February 28, 2010, Excess Cash Flow for purposes of this Section 2.4(c)(v) shall not include any Earn-Out Payment that is actually made in cash and permitted pursuant to Section 6.10(c).
(iiivi) One hundred percent If at any time when Advances are outstanding the aggregate amount of cash in the Deposit Accounts of Parent and its Subsidiaries (100%exclusive of (A) of the Net Cash Proceeds from any sale, transfer, assignment float (i.e. amounts on deposit to cover any checks or other dispositionpayment items that have not yet cleared), whether voluntary, as a result (B) any cash deposited in payroll accounts and (C) any cash that is the proceeds of an Advance made within the previous two Business Days that is to be used to fund (1) any enforcement action by cash Earn-Out Payment permitted to be made pursuant to Section 6.10(c) or (2) any member of the Lender Group or otherwise (other than with respect payment to the sale, transfer or disposition of assets Prentice and its Affiliates that is permitted under to be made pursuant to clauses (i) and (ii) of Section 8.7(b6.7(b)) exceeds $5,000,000 (such amount, the “Excess Cash Amount”), or casualty or condemnation loss of then Borrowers shall, as soon as practicable, but in any Collateral or other assets of any Borrower Party shall be paid event within two one (21) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of Day, prepay the Obligations Advances in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior aggregate amount equal to the date Excess Cash Amount; provided, however, that any payment thereof would have been required hereunder of the intent amounts repaid pursuant to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (Bthis Section 2.4(c)(vi) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and reborrowed (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(bif otherwise permitted hereby) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are shall not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment PeriodTerm Loans.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (a) Unless the Merger Agreement shall have been consummated, there shall become due and payable, and the Borrower shall prepay, an aggregate principal amount of Loans (or, if less, the remaining outstanding principal amount of the Loans), in the following amounts and at the following times:
(i) [Reserved].on the date on which the Borrower or any Credit Party receives any payment under any insurance policy that exceeds $1,000,000 (an “Insurance Payment”), the amount of such payment; and
(ii) In promptly upon receipt by the event that, Borrower or any Credit Party of the proceeds of any Asset Sale after the Agreement Closing Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (an amount equal to 100%) % of the Net Cash Proceeds received by of such Asset Sale, except: with respect to any Borrower Party Asset Sale or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of Insurance Payment, the proceeds thereof by such Borrower Party to the Lenders as Credit Parties shall, at ▇▇▇▇▇▇’▇ direction, apply all or a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) portion of the Net Cash Proceeds from to repay ▇▇▇▇▇▇ Debt and correspondingly permanently reduce all commitments to loan money to any sale, transfer, assignment Credit Party under or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal pursuant to such ▇▇▇▇▇▇ Debt provided, however, that no Net Cash Proceeds shall be applied) applied to reduce the net outstanding ▇▇▇▇▇▇ Debt below the amount of such debt which is secured by the Letters of Credit nor shall any Net Cash Proceeds be used to repay any Letter of Credit Debt or any ▇▇▇▇▇▇ Debt or other Indebtedness held by any Person as a result of such Person having been or becoming subrogated to the prepayment rights of any holder of such ▇▇▇▇▇▇ Debt, including by way of illustration and not limitation, the payment of obligations owed by HealthMont as a result of draws under the Letters of Credit unless the Loans and all other Obligations shall simultaneously be paid in full (and the Credit Parties shall apply any Net Cash Proceeds of such Asset Sale or Insurance Payment not used for such purpose to prepay the Loans as set forth above provided in Section 2.6(b) and this Section).
(b) deliver The Credit Parties shall deposit the Net Cash Proceeds referred to in Section 2.05 into a certificate from bank account in the Borrower name of the Borrower, which account shall be pledged to the Administrative Agent that states that Lenders in accordance with Section 5(d) of the Borrower Parties have reinvested Security Agreement. Such account shall contain only such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”and interest thereon). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(ivc) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in Concurrently with any fiscal year received prepayment required by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on which causes the outstanding aggregate principal amount of the Loans being prepaid and applied in to be less than $50,000, the manner set forth in Section 2.10 and Borrower shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters repay all of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances Obligations in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)full.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party Subject to the Lenders as a mandatory prepayment Intercreditor Agreement, if during any Fiscal Year (commencing with the Fiscal Year beginning January 1, 2020), the Company and its subsidiaries shall have received cumulative net cash proceeds during such Fiscal Year from one or more dispositions of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise property (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party dispositions in the ordinary course of its business) and identifies of at least $250,000, not later than the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request third Business Day following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of any such net cash proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business excess of such Borrower Party and (C) shallamount, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the Company will make a prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations this Note in an amount equal to fifty percent (50%) 100% of Excess Cash Flow for such fiscal quarter net cash proceeds in accordance with Section 2.6(b). Each excess of such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentamount.
(vib) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on Subject to the principal amount Intercreditor Agreement, not later than the third Business Day following the date of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to receipt by Company or any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of its subsidiaries of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests net cash proceeds from any sale or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion issuance of any mandatory prepayment required indebtedness (other than any indebtedness permitted to incurred pursuant to the terms hereofSenior Credit Agreement), other than mandatory prepayments required under clause (v) the Company will make a prepayment of this Section 2.6(c)Note in an amount equal to 100% of such net cash proceeds.
(viic) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) Subject to the Administrative Agent Intercreditor Agreement, not later than the third Business Day following the date of the receipt by Company or any of its subsidiaries of the net cash proceeds from any from any sale or issuance by the Company or any of its subsidiaries of its own equity interests, as far in advance thereof as is reasonably practicable the case may be (and in other than any event at least three Business Days prior theretosale or issuance to management, employees (or key employees) or directors pursuant to stock option or similar plans approved by the board of directors (or similar governing body) for the benefit of management, employees (or key employees) or directors generally), and, except with respect the Company will make a prepayment of this Note in an amount equal to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount 100% of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereundernet cash proceeds.
Appears in 1 contract
Mandatory Prepayments. (a) The Company shall make a prepayment of the Swing Line Loans until reduced to zero and then to the Revolving Loans until reduced to zero, upon the occurrence of any of the following (each a “Mandatory Prepayment Event”) at the following times and in the following amounts (such applicable amounts being referred to as “Designated Proceeds”) unless an Event of Default or Unmatured Event of Default is then existing, in which case the provisions of the Guaranty and Collateral Agreement shall be applicable:
(i) [Reserved]Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any Asset Disposition, in an amount equal to 100% of such Net Cash Proceeds.
(ii) In Concurrently with the event that, after the Agreement Date, receipt by any Borrower Loan Party or of any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received from any issuance of Capital Securities of any Loan Party (excluding (x) any issuance of Capital Securities pursuant to any employee or director option program, benefit plan or compensation program and (y) any issuance by any Borrower Party or such a Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment Company or another Subsidiary), in an amount equal to 50% of the Obligations in accordance with Section 2.6(b)such Net Cash Proceeds.
(iii) One hundred percent (100%) Concurrently with the receipt by any Loan Party of the any Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result issuance of any enforcement action by Debt, including Subordinated Debt, of any member of the Lender Group or otherwise Loan Party (excluding, other than with respect to the saleSubordinated Debt, transfer or disposition of assets Debt permitted under clauses (i) and (ii) of by Section 8.7(b11.1(k)), or casualty or condemnation loss in an amount equal to 100% of such Net Cash Proceeds.
(iv) Concurrently with the receipt by any Loan Party of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss Insurance Proceeds the amount of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business excess of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party $500,000 in the ordinary course of its business) aggregate per calendar year, except to the extent such Insurance Proceeds are to be used to replace, and identifies the long-term assets which shall constitute such reinvestment are in fact used to replace, within 180 days of days, damaged or destroyed assets performing the date of such sale same or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets similar function or that are otherwise useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment PeriodLoan Party.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing Concurrently with the fiscal quarter ending June 30receipt by any Loan Party of any Net Cash Proceeds with respect to any sale or other disposition (through merger or otherwise) of any portion of the Capital Securities of any of the Canadian Entities (other than, 2018unless the Administrative Agent otherwise agrees, CPI Images) are delivered pursuant to Section 7.1(b)or the Mexican Entity, or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment sale or other disposition of all or substantially all of the Obligations in an amount equal to fifty assets of any of the Canadian Entities (other than, unless the Administrative Agent otherwise agrees, CPI Images) or the Mexican Entity, seventy five percent (5075%) of Excess Cash Flow for the aggregate cash proceeds received by any Loan Party pursuant to such fiscal quarter in accordance with Section 2.6(bsale or other disposition (through merger or otherwise). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory , net of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory direct costs relating to the Administrative Agent.
such sale or other disposition (vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests through merger or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(cotherwise).
(viib) The Borrower shall give prior written notice of If on any prepayment required under this Section 2.6(c) to day the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to Revolving Outstandings plus the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal outstanding amount of the Term Swing Line Loan exceeds the Revolving Commitment, the Company shall immediately prepay Revolving Loans and/or Cash Collateralize the L/C Obligations, or do a combination of the foregoing, in an amount sufficient to be prepaid. Notwithstanding anything eliminate such excess.
(c) If on any day on which the Revolving Commitment is reduced pursuant to Section 6.1.1 the contrary hereinRevolving Outstandings plus the outstanding amount of the Swing Line Loan exceeds the Revolving Commitment, failure the Company shall immediately prepay Revolving Loans or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount sufficient to provide eliminate such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderexcess.
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Mandatory Prepayments. (i) [Reserved]The Borrower shall use the Net Proceeds of any sale or disposition by the Borrower or such Subsidiary of any of the Collateral other than Pledged Aircraft (including sale and leaseback transactions and excluding (A) sales of inventory in the ordinary course of business, (B) Designated Asset Sales and (C) sales or dispositions among the Borrower and its Subsidiaries) within sixty (60) days of receipt thereof to either make a partial prepayment of the Term Loans and the New Term Loans on a pro rata basis, or the Borrower shall pledge or cause a Loan Party to pledge to the Administrative Agent, additional Collateral for the benefit of the Lenders, provided that tangible assets will be replaced with tangible assets and intangible assets will be replaced with intangible assets, and of equal or greater aggregate value to such Collateral, as determined by a methodology mutually agreeable to the Borrower and the Administrative Agent to that Collateral disposed of or sold. Additionally, the Borrower shall use the Net Proceeds of any Casualty, sale or disposition by the Borrower or such Subsidiary of any of the Pledged Aircraft (excluding sales or dispositions among the Borrower and its Subsidiaries so long as such Pledged Aircraft remains subject to the Administrative Agent’s perfected first priority security interest) within sixty (60) days of such sale or disposition (or one hundred eighty (180) days with respect to a Casualty) to make a partial prepayment of the Term Loans and the New Term Loans on a pro rata basis, or the Borrower shall pledge or cause a Loan Party to pledge to the Administrative Agent, for the benefit of the Lenders, any combination of aircraft of equal or greater aggregate value, as determined by a methodology mutually agreeable to the Borrower and the Administrative Agent, to that Pledged Aircraft sold, damaged (to the extent of a total loss), disposed of or destroyed. In each case, upon receipt of Net Proceeds from any such Casualty (with respect to Pledged Aircraft), sale or disposition, the Borrower shall deposit or shall cause to be deposited such Net Proceeds into an account with one of the Lenders subject to a control agreement on terms and condition reasonably acceptable to the Administrative Agent. In the event that Net Proceeds are received by the Administrative Agent as loss payee relating to a Casualty of a Pledged Aircraft, the Administrative Agent shall, at the Borrower’s request, either (i) apply such Net Proceeds to make a partial prepayment of the Term Loans and the New Term Loans on a pro rata basis, or (ii) upon the Borrower’s (or such Loan Party’s or Loan Parties’) substitution of Pledged Aircraft pursuant to the terms of this Section 2.12(a)(i) and provided no Event of Default has occurred and is continuing, promptly deliver to the Borrower or such Loan Party the amount of such Net Proceeds received by the Administrative Agent with respect to such Pledged Aircraft relating to such Casualty. In the event of a Casualty of Collateral other than Pledged Aircraft, the Borrower or the relevant Loan Party (i) shall cause the Net Proceeds to be delivered to the Administrative Agent as loss payee, and (ii) in lieu of making a prepayment under this Section 2.12(a)(i) with respect to such Casualty, may substitute Collateral of equal or greater aggregate value as determined by a methodology mutually agreeable to the Borrower and the Administrative Agent, provided that tangible assets will be replaced with tangible assets and intangible assets will be replaced with intangible assets, within one hundred eighty (180) days of such Casualty. If at the end of any such one hundred eighty (180) day period, any Net Proceeds from a Casualty of any Pledged Aircraft or other Collateral have not been used for prepayment or substitute Collateral provided pursuant to this Section 2.12.(a)(i), then such Net Proceeds shall be applied to make a partial prepayment of the Term Loans and the New Term Loans on a pro rata basis. Upon such a substitution of Collateral and provided no Event of Default has occurred and is continuing, the Administrative Agent shall promptly deliver to the Borrower or such Loan Party the amount of such Net Proceeds received by the Administrative Agent with respect to such Collateral relating to such Casualty. Any such prepayment on account of the Term Loans made under this Section 2.12(a)(i) shall be applied in accordance with paragraph (b) below.
(ii) In The Borrower shall prepay any outstanding New Term Loans on a pro rata basis from the event that, after Net Proceeds received by the Agreement Date, any Borrower Party or any Subsidiary from any issuance of a Borrower Party shall incur Capital Markets Securities occurring on or after the Eighth Amendment Effective Date until an aggregate principal amount of New Term Loans of up to $200,000,000 (the “Initial Application Amount”) has been prepaid pursuant to this Section 2.12(a)(ii); provided any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of amount above the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence Initial Application Amount shall be paid within one applied to any remaining availability in the Exempt Debt Amount (1as defined below) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations or otherwise in accordance with Section 2.6(b2.12(a)(iv), if applicable.
(iii) One hundred percent (100%) of The Borrower shall not be required to prepay the Term Loans or the New Term Loans from the Net Cash Proceeds received by the Borrower or any Subsidiary from (A) the incurrence of any saleIndebtedness in connection with export credit agency financings of aircraft and other debt facilities or commercial paper facilities, transfer, assignment in each case with banks or other dispositioninstitutional lenders or institutional investors providing for revolving credit loans, whether voluntaryterm loans, as a result receivables financing (including through the sale of any enforcement action by any member of the Lender Group receivables to such lenders or otherwise to special purpose entities formed to borrow from (other than with respect to the sale, transfer or disposition of assets permitted under clauses (isell receivables to) and (ii) of Section 8.7(b)such lenders against such receivables), or casualty sale and leaseback transactions other than Excluded Sale and Leaseback Transactions, or condemnation loss letters of any Collateral credit, in each case as amended, restated, modified, renewed, refunded, replaced or other assets of any Borrower Party shall be paid within two refinanced in whole or in part from time to time; or (2B) Business Days of receipt thereof by any Borrower Party as a mandatory after the Initial Application Amount has been applied in prepayment of the Obligations in accordance with New Term Loans pursuant to Section 2.6(b2.12(a)(ii). Notwithstanding the foregoing, unless an Event any issuance of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing Capital Markets Securities occurring on or prior to after the date any payment thereof would have been required hereunder Eighth Amendment Effective Date, provided that the aggregate amount of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds does not exceed $250,000,000 (the “Net Cash Proceeds Reinvestment PeriodExempt Debt Amount”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent At any time (100%A) after the issuances, sales, and financings described in Section 2.12(a)(iii) (for the avoidance of doubt, excluding Excluded Sale and Leaseback Transactions) have produced Net Proceeds equal to the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year Exempt Debt Amount and (B) solely with respect to Net Proceeds received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to or any Subsidiary from any issuance of Capital Markets Securities occurring on or after the Lenders as a mandatory Eighth Amendment Effective Date, after the Initial Application Amount has been applied in prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered New Term Loans pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”2.12(a)(ii), the Borrower Parties shall make prepay the Terms Loans and the New Term Loans on a mandatory prepayment of the Obligations pro rata basis, in an amount equal to (A) fifty percent (50%) of Excess Cash Flow the aggregate Net Proceeds of any issuance of any Indebtedness for such fiscal quarter borrowed money by the Borrower or any Subsidiary incurred thereafter; and (B) twenty-five percent (25%) of the aggregate Net Proceeds of sales of Capital Stock in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory the Borrower or any Subsidiary, and Indebtedness of the Borrower Parties certifying or any Subsidiary convertible by the manner holder thereof into Capital Stock of the Borrower or such Subsidiary, incurred thereafter.
(v) Notwithstanding any provision to the contrary set forth in which Excess Cash Flow this Section 2.12(a), as long as no Event of Default has occurred and is continuing, the mandatory prepayments described in Section 2.12(a)(ii) through (iv) shall not be required at such time as the Leverage Ratio, determined at issuance in the case of equity and on a pro forma basis for the incurrence of Indebtedness, as of such time, is less than 4.00:1.00.
(p) Section 2.12(b) is hereby amended by replacing the first clause of Section 2.12(b) to the colon with the following language: Any prepayments made by the Borrower pursuant to Section 2.12(a) above with respect to the Term Loans shall be applied as follows:
(q) Section 2.23(a) of the Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
(a) So long as no Event of Default has occurred and is continuing, from time to time after the Closing Date, Borrower may, upon at least 20 days’ prior written notice to the Administrative Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Aggregate Revolving Commitments (such increase, the “Additional Revolving Commitment Amount”) or the Aggregate Term Loan Commitments (such increase, the “Additional Term Loan Commitment Amount”), or a combination thereof, by an aggregate amount not to exceed (x) $200,000,000, less (y) to the extent that the New Term Loan Agreement is in effect on the date of any such proposal by the Borrower, the aggregate principal amount of the New Term Loans outstanding thereunder on such date (the total amount of the Additional Revolving Commitment Amount and the resulting prepayment were calculatedAdditional Term Loan Commitment Amount, the “Additional Commitment Amount”) by designating another bank or financial institution (which certificate shall may be, but need not be, one or more of the existing Lenders) which at the time agrees to, in the case of any such Person that is an existing Lender, increase its Revolving Commitment or its Term Loan Commitment and in the case of any other such Person (an “Additional Lender”), become a party to this Agreement; provided, however, that any bank or financial institution that is not then an existing Lender under this Agreement must be in form and substance satisfactory acceptable to the Administrative Agent.
, which acceptance shall not be unreasonably withheld or delayed; provided, further, no such increase of the Aggregate Revolving Commitments or the Aggregate Term Loan Commitments may take place if the Leverage Ratio is greater than 4.00:1.00 on a pro forma basis after taking into account the amount of such increase regardless of whether drawn at the time of the increase request. The sum of the increases in the Revolving Commitments and the Term Loan Commitments of the existing Lenders pursuant to this subsection (vib) Any payments due under this Section 2.6(c) plus the Revolving Commitments and the Term Loan Commitments of the Additional Lenders shall be accompanied by all accrued interest on not in the principal aggregate exceed the unsubscribed amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to Additional Commitment Amount. No Lender (or any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(csuccessor thereto) shall be applied first have any obligation to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests increase its Revolving Commitment, its Term Loan Commitment or incur Funded Debt except as otherwise not prohibited by its other obligations under this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) , and any decision by a Lender to the contraryincrease its Revolving Commitment, each Lender its Term Loan Commitment or a combination thereof shall be permitted made in its sole discretion to decline all or independently from any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)Lender.
(viir) The Section 2.28(a) of the Credit Agreement is hereby amended by replacing in its entirety subsection (1) of such section with the following:
(1) All or any part of such Defaulting Lender’s participation in Letters of Credit and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares of the Revolving Commitments (calculated without regard to such Defaulting Lender’s Revolving Commitment) but only to the extent that (x) the conditions set forth in Section 3.2 are satisfied at the time of such reallocation (and, unless the Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to have otherwise notified the Administrative Agent at least three Business Days prior such time, the Borrower shall be deemed to making have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the aggregate Revolving Credit Exposure of each any Non-Defaulting Lender to exceed such prepaymentNon-Defaulting Lender’s Revolving Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a certificate signed by an Authorized Signatory Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
(s) Section 3.1 of the Borrower setting forth in reasonable detail Credit Agreement is hereby amended by adding the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.following new subsection (b)(xviii):
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Bristow Group Inc)
Mandatory Prepayments. (a) Immediately upon receipt by the Borrower or any of its Subsidiaries of any proceeds in an aggregate amount exceeding $500,000 in any Fiscal Year from (A) any sale or disposition by the Borrower or any of its Subsidiaries of any of its assets, or (B) any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the Obligations in an amount equal to 100% of such proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Borrower in connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations (i) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to proceeds from the salesales of inventory in the ordinary course of business, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), so long as no Default or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing at the time of the receipt of proceeds pursuant to this subsection (a) or would result therefromat the proposed time of the reinvestment of such proceeds, the Borrower Parties may elect shall have the option, upon written notice to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent Agent, directly or (x) in writing on the case of proceeds received by a Loan Party, through one or prior to more of its Subsidiaries that is a Loan Party or (y) in the date any payment thereof would have been required hereunder case of the intent proceeds received by a Subsidiary that is not a Loan Party, through one or more of its Subsidiaries, to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party proceeds within three hundred sixty-five (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business365) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment thereof in assets of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful general type used in the business of the Borrower and its Subsidiaries so long as such Borrower proceeds received by a Loan Party and (C) shall, upon the Administrative Agent’s request following the occurrence and are held in Controlled Accounts at Truist Bank or other accounts subject to Control Account Agreements until reinvested; provided that any funds that are committed to be reinvested during the continuance initial three hundred sixty-five (365) days after the receipt of such proceeds but the reinvestment has not yet occurred by the end of such period, the Borrower and its Subsidiaries shall have an Event additional one hundred eighty (180) day period to consummate such reinvestment; provided, further, that if any such proceeds have not been reinvested at the end of Defaultsuch additional period, be applied (or an amount equal to such Net Cash Proceeds the Borrower shall be applied) to the prepayment of promptly prepay the Obligations as set forth above required by this Section 2.12(a). Any such prepayment shall be applied in Section 2.6(baccordance with subsection (d) and of this Section.
(b) deliver a certificate from Immediately upon receipt by the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof any proceeds from any issuance or incurrence of Indebtedness by the Borrower Parties to the Lenders as a mandatory prepayment or any of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromits Subsidiaries, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) 100% of Excess Cash Flow for such fiscal quarter in accordance proceeds, net of costs and expenses related thereto; provided that the Borrower shall not be required to prepay the Obligations with respect to proceeds of Indebtedness permitted under Section 2.6(b)7.1. Each Any such prepayment shall be accompanied by a certificate signed by an Authorized Signatory applied in accordance with subsection (d) of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentthis Section.
(via) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)[Reserved].
(viib) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c[Reserved].
(c) to the Administrative Agent as far in advance thereof as is reasonably practicable [Reserved].
(and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (vd) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder[Reserved].
Appears in 1 contract
Mandatory Prepayments. 1377643.07
(a) The Company shall make a prepayment of the Term B Loans (applied as set forth in Section 6.3.1) until paid in full and then to the Revolving Loans until paid in full, upon the occurrence of any of the following (each a “Mandatory Prepayment Event”) at the following times and in the following amounts (such applicable amounts being referred to as “Designated Proceeds”) unless an Event of Default or Unmatured Event of Default is then existing, in which case the provisions of the Guaranty and Collateral Agreement shall be applicable:
(i) [Reserved]Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any Asset Disposition, in an amount equal to 100% of such Net Cash Proceeds.
(ii) In Concurrently with the event that, after the Agreement Date, receipt by any Borrower Loan Party or of any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received from any issuance of Capital Securities of any Loan Party (excluding (x) any issuance of Capital Securities pursuant to any employee or director option program, benefit plan or compensation program and (y) any issuance by any Borrower Party or such a Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment Company or another Subsidiary), in an amount equal to 50% of the Obligations in accordance with Section 2.6(b)such Net Cash Proceeds.
(iii) One hundred percent (100%) Concurrently with the receipt by any Loan Party of the any Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result issuance of any enforcement action Debt, including Subordinated Debt, of any Loan Party (excluding, other than Subordinated Debt, Debt permitted by Section 11.1), in an amount equal to 100% of such Net Cash Proceeds.
(iv) Concurrently with the receipt by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss Loan Party of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss Insurance Proceeds the amount of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business excess of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party $500,000 in the ordinary course of its business) aggregate per calendar year, except to the extent such Insurance Proceeds are to be used to replace, and identifies the long-term assets which shall constitute such reinvestment are in fact used to replace, within 180 days of days, damaged or destroyed assets performing the date of such sale same or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets similar function or that are otherwise useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment PeriodLoan Party.
(v) On Concurrently with the date that is ten receipt by any Loan Party of any Net Cash Proceeds with respect to any sale or other disposition (10through merger or otherwise) Business Days of any portion of the Capital Securities of any of the Canadian Entities (other than, unless the Administrative Agent otherwise agrees, CPI Images) or the Mexican Entity, or the sale or other disposition of all or substantially all of the assets of any of the Canadian Entities (other than, unless the Administrative Agent otherwise agrees, CPI Images) or the Mexican Entity, seventy five percent (75%) of the aggregate cash proceeds received by any Loan Party pursuant to such sale or other disposition (through merger or otherwise), net of the direct costs relating to such sale or other disposition (through merger or otherwise).
(vi) Within 90 days after the earlier end of (A) each of the date on which the quarterly unaudited financial statements for any Company’s fiscal quarter (years, commencing with the fiscal quarter Fiscal Year ending June 30February 2, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)2008, the Borrower Parties Company shall make a mandatory prepayment of the Obligations in pay to Administrative Agent an amount equal to fifty seventy five percent (5075%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment Fiscal Year; provided, however, if the ratio of Total Funded Debt to EBITDA is below 1.50 to 1.00 for any two consecutive Computation Periods Fiscal Year, then the foregoing percentage shall be accompanied by a certificate signed by an Authorized Signatory of twenty 1377643.07 five percent (25%) for the Borrower Parties certifying the manner Fiscal Year in which Excess Cash Flow the second such Computation Period occurs and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentfor each Fiscal Year thereafter.
(vib) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest If on any day the principal Revolving Outstandings plus the outstanding amount of the Swing Line Loan exceeds the Revolving Commitment, the Company shall immediately prepay Revolving Loans being prepaid and applied in and/or Cash Collateralize the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters outstanding Letters of Credit, or do a combination of the applications set forth aboveforegoing, prepayments of the Term Loans pursuant in an amount sufficient to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)eliminate such excess.
(viic) The Borrower shall give prior written notice of If on any prepayment required under this Section 2.6(c) to day on which the Administrative Agent as far in advance thereof as Revolving Commitment is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required reduced pursuant to clause (v) above, deliver to Section 6.1.1 the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of Revolving Outstandings plus the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal outstanding amount of the Term Swing Line Loan exceeds the Revolving Commitment, the Company shall immediately prepay Revolving Loans or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in an amount sufficient to be prepaid. Notwithstanding anything to the contrary herein, failure to provide eliminate such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderexcess.
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Mandatory Prepayments. Notwithstanding the following and subject to the terms of the Intercreditor Agreement, (i) [Reserved]during a Waterfall Event, the order of application to the Obligations shall be made pursuant to Section 11.2 rather than as is provided in this Section 2.5 and (ii) the amount of any prepayments required to be made under this Section 2.5 shall be reduced by the amount of proceeds which are required to be paid under the corresponding mandatory prepayment provisions of the Revolving Loan Agreement and which are in fact paid and applied to permanently reduce the Maximum Credit under the Revolving Loan Agreement and any commitment thereunder.
(iia) In the event that, after the Agreement Date, When any Borrower Loan Party or any Subsidiary of a Borrower Party shall incur their Subsidiaries Disposes of any Funded Debt Collateral or other assets (other than Funded Debt permitted under Section 8.1sales of Inventory in the ordinary course of business) or receives proceeds of property or casualty insurance, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of thereof, Loan Parties shall prepay the proceeds thereof by such Borrower Party Term Loan in an amount equal to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One one hundred percent (100%) percent of the Net Cash Proceeds from net cash proceeds of such sale (i.e., gross cash proceeds less the reasonable out-of-pocket costs and expenses in respect of such Dispositions (including any sale, transfer, assignment taxes and similar amounts)) or other disposition, whether voluntaryall of the cash proceeds of such insurance, as applicable, such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such proceeds, and until the date of payment, such proceeds shall be held in trust for the Lender. Notwithstanding the foregoing, unless and until an Event of Default has occurred and is continuing or would result therefrom, such proceeds from Dispositions and insurance payments that do not exceed $250,000 in the aggregate in any fiscal year may be retained by Loan Parties solely to acquire replacement assets without making a result of any enforcement action by any member mandatory prepayment hereunder so long as (1) the fair market value of the acquired assets is equal to or greater than the fair market value of the assets which were Disposed or subject to the insurance payment, as applicable, (2) the acquired assets are purchased by the applicable Loan Party within one hundred twenty (120) days of the Disposal of the assets or receipt of the insurance payment, as applicable, (3) the acquired assets are acceptable to the Lender Group in its Permitted Discretion, (4) if the assets that were Disposed or otherwise that were the subject of the insurance payment, as applicable, were Collateral, the acquired assets must all be Collateral and shall be subject to the Lender’s first priority Lien created hereunder (other than with respect to the saleRevolving Loan Priority Collateral (subject to the Intercreditor Agreement) or subject to Permitted Encumbrances), transfer or disposition of assets permitted under clauses (i) and (ii5) of Section 8.7(b))until such time as the proceeds are used to acquire such replacement assets, or casualty or condemnation loss of any Collateral or other assets of any Borrower Party at the Lender’s option, either (x) such proceeds shall be paid within two held by the Lender as cash collateral for the Obligations pursuant to terms acceptable to the Lender in its sole discretion or (2y) Business Days of receipt thereof by any Borrower Party such proceeds shall be applied as a mandatory prepayment of the Obligations Term Loan. Such cash collateral shall be released by the Lender to be used by the Borrowers solely for the purposes of funding the acquisition of replacement assets pursuant to the terms of this Section 2.5. If a Loan Party fails to meet the conditions set forth above, Loan Parties hereby authorize the Lender to apply the proceeds held by the Lender as a prepayment of the Term Loan in accordance with the manner set forth above. The provisions of this Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default 2.5(a) shall have occurred and not be continuing or would result therefrom, the Borrower Parties may elect deemed to reinvest Net Cash Proceeds from be implied consent to any such sale, transfer, assignment or other disposition Disposition otherwise prohibited by the terms and conditions of this Agreement or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties Other Document.
(a)(ib) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party Within one (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business1) and identifies the long-term assets which shall constitute such reinvestment within 180 days Business Day of the date of such sale receipt by any Loan Party or receipt any of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment its Subsidiaries of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the any Extraordinary Receipts in excess of $2,500,000 50,000 individually or in the aggregate aggregate, Borrowers shall prepay the outstanding amount of the Term Loan in an amount equal to one hundred (100%) percent of such Extraordinary Receipts, net of any fiscal year received reasonable out of pocket fees and expenses incurred in collecting such Extraordinary Receipts. The provisions of this Section 2.5(b) shall not be deemed to be implied consent to any event giving rise to such Extraordinary Receipts otherwise prohibited by the terms and conditions of this Agreement.
(c) Within one (1) Business Day of the date of the issuance by any Borrower Loan Party or any of its Subsidiaries shall be paid within five of any shares of its or their Equity Interests (5other than (i) Business Days the issuance of receipt thereof Equity Interests to another Loan Party or Subsidiary thereof, (ii) the issuance of Equity Interests of Parent to directors, officers and employees of a Loan Party and any of their respective Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Borrower Parties board of directors of Parent and (iii) the issuance of Equity Interests of Parent, to the Lenders as extent the proceeds thereof are used concurrently with the issuance thereof to fund the purchase price of a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (bPermitted Acquisition) or the receipt by any Loan Party or any of its Subsidiaries of any capital contribution from any Person (dother than (i) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on from another Loan Party or prior to the date any payment Subsidiary thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts the proceeds thereof are not fully reinvested during used concurrently to fund the Extraordinary Receipts Reinvestment Periodpurchase price of a Permitted Acquisition), an amount equal to such remaining Extraordinary Receipts is required to be applied to Borrowers shall prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration outstanding amount of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations Term Loan in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory percent of the Borrower Parties certifying net cash proceeds of such sale or contribution (i.e., gross cash proceeds less the manner reasonable out-of-pocket costs and expenses in which Excess Cash Flow respect of such issuance or contribution (including any taxes and the resulting prepayment were calculated, which certificate shall be similar amounts)) received by such Person in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under connection with such issuance or contribution. The provisions of this Section 2.6(c2.5(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall not be deemed to allow the Borrower Parties be implied consent to issue Equity Interests or incur Funded Debt except as any such issuance otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) and conditions of this Section 2.6(c)Agreement.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) In the event that, after the Agreement Date, Immediately upon any Borrower sale or disposition by any Loan Party or any Subsidiary its Subsidiaries of a Borrower Party shall incur any Funded Debt property or assets (other than Funded Debt permitted under Section 8.1(x) a Permitted Disposition described in clause (b), one hundred percent (100%c), (d) or (e) of the definition of such term or (y) the DEYCO Sale) or the receipt by any Loan Party of the proceeds of any insurance policy with respect to Inventory or condemnation awards with respect to Inventory, Borrowers shall prepay the outstanding principal amount of the Term Loan to the extent provided in Section 2.4(d) with all Net Cash Proceeds or the insurance or condemnation proceeds received by such Person in connection with such sales or dispositions or such casualty or condemnation event to the extent that the aggregate amount of Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be all Loan Parties and their Subsidiaries (and not paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders Agent as a mandatory prepayment of the Obligations Term Loan) for all such sales or dispositions shall exceed $250,000 since the Closing Date. Nothing contained in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses this subclause (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of shall permit any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Loan Party or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(ii) [Intentionally Omitted.]
(iii) Upon the receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts, Borrowers shall be paid within five prepay the outstanding principal of the Term Loan to the extent provided in Section 2.4(d) with all such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(5iv) [Intentionally Omitted.]
(v) Within ten (10) Business Days of receipt thereof by the Borrower Parties delivery to the Lenders as a mandatory prepayment Agent of each of the Obligations in accordance with audited annual financial statements pursuant to Section 2.6(b). Notwithstanding the foregoing, unless 6.3(b) for an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) Fiscal Year of the definition thereofParent or, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior if such financial statements are not delivered to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of Agent on the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that statements are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied delivered pursuant to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is 6.3(b), ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial such statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered to Agent pursuant to Section 7.1(b) (the “ECF Prepayment Date”6.3(b), the Borrower Parties Borrowers shall make a mandatory prepayment of the Obligations in pay to Agent an amount equal to fifty percent the product of (50%x) of the Applicable Excess Cash Flow Percentage for such Fiscal Year, times (y) the Excess Cash Flow for the Fiscal Year covered by such fiscal quarter financial statements, to be applied to the Term Loan in accordance with Section 2.6(b2.4(d). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied Upon the sale or issuance by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all Party or any portion of its Subsidiaries of any mandatory prepayment required pursuant to shares of its Stock, the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower Borrowers shall give prior written notice of any prepayment required under this Section 2.6(c) to prepay the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the outstanding principal amount of the Term Loans Loan to the extent provided in Section 2.4(d) with all of the Net Cash Proceeds received by such Person in connection therewith. The provisions of this subsection (x) shall not be deemed to be prepaid. Notwithstanding anything implied consent to any such issuance, incurrence or sale otherwise prohibited by the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderterms and conditions of this Agreement.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(iia) In the event that, after the Agreement Date, connection with (x) any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer sale or disposition of assets permitted under clauses (i) and (ii) or series of Section 8.7(b)), related sales or casualty or condemnation loss dispositions of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition Company or any such casualty or condemnation loss of any Collateral or such its Subsidiaries (other assets, so long as than the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder sale of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party inventory in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such generating Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 25,000,000 or (y) any dividend, spin-off or other distribution of assets (whether accomplished in one transaction or a series of related transactions) by the aggregate in any fiscal year received by any Borrower Party Company or any of its Subsidiaries shall be paid within five (5whether accomplished in one transaction or a series of related transactions) Business Days of receipt thereof by the Borrower Parties leading to the Lenders as a mandatory prepayment assumption or repayment of Indebtedness of the Obligations Company or any of its Subsidiaries in accordance with Section 2.6(b). Notwithstanding the foregoingexcess of $25,000,000 (each, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”"Timber ------ Disposition"), the Borrower Parties Company shall make a mandatory prepayment of prepay the Obligations Loans in an amount equal to fifty percent the Net ----------- Proceeds of each Timber Disposition described in clause (50%x) of Excess Cash Flow for such fiscal quarter within 30 days after receipt thereof and in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory amount equal to the Administrative Agentprincipal and accrued interest of such Indebtedness assumed or repaid in connection with each Timber Disposition described in clause (y) upon the date of such assumption or repayment.
(vib) Any payments due under this In connection with any merger or consolidation permitted by the proviso set forth in Section 2.6(c8.03 hereof, the Company shall prepay (or shall ------------ cause the prepayment of) shall be accompanied by all accrued interest on the full principal amount of the Loans being prepaid and applied in then outstanding prior to or concurrently with the manner set forth in effective date of such merger or consolidation.
(c) Any prepayment of the Loans required by this Section 2.10 and 2.06 shall not be ------------ subject to the minimum amount requirements of Section 2.05(b). ---------------
(d) Upon any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) 2.06, the Agent shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow ------------ promptly notify the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount Lenders of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(ii) In Immediately upon receipt by the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) its Subsidiaries of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment the sale or other disposition, whether voluntary, as a result disposition of any enforcement action by of its assets pursuant to Sections 7.6(f) or 7.6(n), or any member of casualty insurance policies or eminent domain, condemnation or similar proceedings, the Lender Group or otherwise (other than Borrower shall prepay the Obligations in an amount equal to all such Net Cash Proceeds; provided that, notwithstanding the foregoing, the Borrower shall not be required to prepay the Obligations with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) proceeds from the sales of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party inventory in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and , (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Accountnot exceeding the greater of $2,500,000 in any Fiscal Year and $10,000,000 in the aggregate after the Amendment and Restatement Effective Date (and if such foregoing amount is exceeded, which only such excess amounts shall be subject to this clause (a)) and (iii) Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful reinvested in assets then used or usable in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party and its Subsidiaries within 180 days following receipt thereof (or if the Borrower or any of the date of its Subsidiaries has entered into and not abandoned or rejected a binding agreement to so reinvest such sale or proceeds within 180 days following receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent thereof, such Net Cash Proceeds are not fully so reinvested during within 90 days after the end of such 180-day period). Any such prepayment shall be applied in accordance with subsection (c) of this Section.
(b) In the event that the Borrower or any of its Subsidiaries receives Net Cash Proceeds Reinvestment Periodfrom the issuance or incurrence of Indebtedness by the Borrower or any of its Subsidiaries that is not permitted under Section 7.1, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) the receipt of such proceeds by the Borrower or its applicable Subsidiary, apply an amount equal to 100% of such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
subsection (iv) One hundred percent (100%c) of this Section. In the Extraordinary Receipts in excess of $2,500,000 in event that the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five receives Net Cash Proceeds from the issuance or incurrence of Indebtedness that constitutes (5i) Incremental Term Loans or Revolving Loans in respect of Incremental Revolving Commitments, in each case incurred to refinance all or any portion of the Term Loans, (ii) Extended Term Loans or Revolving Loans in respect of Extended Revolving Commitments, in each case incurred to refinance all or any portion of the Term Loans or (iii) Other Refinancing Loans incurred to refinance all or any portion of the Term Loans, the Borrower shall, substantially simultaneously with (and in any event not later than US-DOCS\151470090.12 the fifth succeeding Business Days Day) the receipt of receipt thereof such Net Cash Proceeds by the Borrower Parties or its applicable Subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay the Lenders as a mandatory prepayment outstanding principal amount of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, relevant Term Loans.
(c) Any prepayments made by the Borrower Parties may elect pursuant to reinvest amounts constituting Extraordinary Receipts under clause subsection (a), ) or (b) or (d) of the definition thereofthis Section shall be applied as follows: first, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following fees and reimbursable expenses then due and payable pursuant to any of the occurrence Loan Documents; second, to all reimbursable expenses of the Lenders and during all fees and reimbursable expenses of the continuance Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, unless otherwise provided in the applicable Incremental Commitment Joinder, Extended Facility Agreement or Refinancing Amendment, as applicable, to the principal balance of any then outstanding Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of such Term Loans, and applied to installments of such Term Loans on a pro rata basis (including, without limitation, the final payment due on the Maturity Date); fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments; and seventh, to Cash Collateralize the Letters of Credit in an Event amount in cash equal to the LC Exposure as of Defaultsuch date plus any accrued and unpaid fees thereon.
(d) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, be applied (as reduced pursuant to Section 2.8 or otherwise increased pursuant to Section 2.23, the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such Extraordinary Receipts excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall be applied) applied as follows: first, to the Swingline Loans to the full extent thereof; second, to the Revolving Loans that are Base Rate Loans to the full extent thereof; and third, to the Revolving Loans that are SOFR Loans to the full extent thereof. If, after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall Cash Collateralize its reimbursement obligations with respect to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts all Letters of Credit in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodexcess plus any accrued and unpaid fees thereon.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (a) On each Quarterly Payment Date beginning with the Quarterly Payment Date occurring in March, 2008 and on each Quarterly Payment Date thereafter, to and including the Quarterly Payment Date immediately preceding the Maturity Date, Company shall make a principal payment in respect of the Notes in an aggregate amount equal to the Adjusted Net Cash Flow for the ANCF Quarter applicable thereto; PROVIDED that, in no event shall the Company be required to make a payment that results in the Company having cash and Cash Equivalents (exclusive of any cash and Cash Equivalents that have been pledged to secure other obligations permitted hereby or that otherwise constitutes "restricted cash" permitted hereby) of less than $2,000,000 (and the amount of any such required payment shall be reduced accordingly to the extent necessary to comply with this proviso). If any principal or interest amount payable under the Notes remains outstanding at the Maturity Date, such amount will be paid in full by Company to the Holders in immediately available funds on the Maturity Date.
(b) If the Required Holders shall, in their discretion, approve the sale of any Collateral requested by Company (which sale was not otherwise permitted by this Agreement), Company shall make a payment in respect of the Notes in an aggregate amount equal to the sales proceeds received by Company net only of reasonable out-of-pocket costs of such sale paid to non-Affiliates of Company, which payment shall include the same prepayment premium described in Section 2.9 for an optional prepayment of principal on the Notes.
(c) If Company or any other Credit Party receives any casualty insurance proceeds or condemnation proceeds in connection with any assets of Company or such other Credit Party and (i) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to proceeds up to $2,000,000 in any fiscal year, such proceeds are not utilized to repair or replace such assets within 180 days after the saledate of such casualty event or condemnation event, transfer or disposition then immediately upon the expiration of assets permitted under clauses (i) such 180 day period Company shall prepay the Loans in an amount equal to 100% of such unutilized excess, and (ii) with respect to proceeds in excess of Section 8.7(b)$2,000,000 in any fiscal year (unless the use of such excess insurance or condemnation proceeds is otherwise specifically provided for in the APOD), or casualty or condemnation loss Company shall repay the Notes in an amount equal to 100% of any Collateral or other assets such excess immediately upon receipt of any Borrower Party shall be paid within two such proceeds; PROVIDED that, notwithstanding the provisions of clause (2i) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoingabove, unless if an Event of Default shall have has occurred and be continuing or would result therefromis continuing, Company shall repay the Borrower Parties may elect Loans in an amount equal to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such 100% of all casualty or insurance proceeds and condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets proceeds not already utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days Company as of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment regardless of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in whether the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt amount of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts fiscal year is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodless than $2,000,000.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
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Mandatory Prepayments. Subject to Section 1.11, Section 2.09(c) and Section 2.09(d):
(i) [Reserved].
Within five (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (25) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party Holdings or any of its Subsidiaries of any Net Cash Proceeds from Asset Sales or Casualty Events constituting Excess Proceeds, the Borrower shall prepay the Term Loans in accordance with Section 2.09(c) in an amount equal to 100% of such ExcessNet Cash Proceeds; provided that, except in connection with a sale, assignment, transfer, lease, conveyance or other disposition (in a single transaction or a series of related transactions) of all, or substantially all, of the assets of Holdings and its Subsidiaries, taken as a whole, the Borrower may deliver a Reinvestment Notice to the Administrative Agent (which shall promptly transmit such Reinvestment Notice to the Lenders) in accordance with Section 2.09(b)(vi) and, to the extent such ExcessNet Cash Proceeds are actually applied as contemplated by Section 2.09(b)(vi), no prepayment with such ExcessNet Cash Proceeds shall be paid required hereunder; it being agreed that to the extent all or any portion of such ExcessNet Cash Proceeds are not applied as contemplated by Section 2.09(b)(vi) in the time period described therein, the remaining portion of such ExcessNet Cash Proceeds shall be applied to make a prepayment pursuant to this Section 2.09(b)(i) within five (5) Business Days of receipt thereof by the expiration of such time period. The Borrower Parties shall notify the Administrative Agent (which shall promptly transmit such Reinvestment Notice to the Lenders as a mandatory Lenders) of such prepayment of the Obligations in accordance with Section 2.6(b2.09(d). Notwithstanding For the foregoingavoidance of doubt, unless an Event in the event of Default shall have occurred a sale, assignment, transfer, lease, conveyance or other disposition (in a single transaction or a series of related transactions) of all, or substantially all, of the assets of Holdings and be continuing or would result therefromits Subsidiaries, taken as a whole, the Borrower Parties may elect shall not be permitted to reinvest amounts constituting Extraordinary Receipts under clause (aany ExcessNet Cash Proceeds resulting therefrom, but instead shall be required to prepay the Loans in accordance with the first sentence of Section 2.09(b)(i), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and .
(ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited Within five (A5) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request Business Days following the occurrence and during receipt by Holdings or any of its Subsidiaries of Net Cash Proceeds from a Debt Issuance, the continuance of an Event of Default, be applied (or Borrower shall prepay the Term Loans in accordance with Section 2.09(c) in an amount equal to 100% of such Extraordinary Receipts shall be appliedNet Cash Proceeds.
(iii) to the prepayment Within five (5) Business Days following receipt by Holdings or any of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from its Subsidiaries of any Specified Equity Contribution, the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to shall prepay the Obligations Loans in accordance with Section 2.6(b2.09(c) immediately upon the expiration in an aggregate amount equal to 100% of the Extraordinary Receipts Reinvestment Periodsuch Specified Equity Contribution.[Reserved].
(viv) On the date that is ten Within five (105) Business Days after following the earlier of (Ax) delivery of financial statements pursuant to Section 5.01(a) and (y) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B5.01(a) the date on which such financial statements were are required to be delivered pursuant delivered, with respect to Section 7.1(b) (the “ECF Prepayment Date”)each Excess Cash Flow Period, the Borrower Parties shall make a mandatory prepayment of repay the Obligations Term Loans in accordance with Section 2.09(c) in an amount equal to fifty percent (50%1) the Excess Cash Flow Percentage of the Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow Period, minus (2) at the option of the Borrower, the sum of (A) the amount of all voluntary prepayments of principal ofInitial Term Loans, and Term Loans and other Indebtedness (in each case, excluding prepayments made with the resulting prepayment were calculatedproceeds of any Equity Issuances or Indebtedness (other than revolving Indebtedness)other than under any revolving facilities), which certificate shall be in form each case that are secured by the Collateral on a pari passu basis with the Initial Term Loans, (B) all voluntary prepayments of Revolving Credit Loans, Extended Revolving Credit Loans and substance satisfactory Incremental Revolving Credit Loans, to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied extent the Revolving Credit Commitments, Extended Revolving Credit Commitments, and/or Incremental Revolving Credit Commitments, as the case may be, are permanently reduced by all accrued interest on the principal amount of such payments and (C) the amount equal to all payments in cash actually paid by Holdings or the Borrower in connection with the buy-back of Initial Term Loans being prepaid and applied Term Loans that are pari passu in right of payment and security with the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Initial Term Loans pursuant to Section 10.04(g), in each case, made at any time during the period from the first day of such Excess Cash Flow Period but without duplication of any such prepayments applied to reduce the payment required pursuant to this Section 2.6(c2.09(b)(iv) shall be applied first with respect to Base Rate Advances and then any prior Excess Cash Flow Period to Eurodollar Advances in direct order the date such Excess Cash Flow payment is actually made as herein provided. (the difference of Eurodollar Advance Period maturities. Nothing (1) minus (2), the “ECF Prepayment Amount”; provided that any such ECF Prepayment Amount referred to in this Section 2.6(c2.09(b)(iv) shall shall, at the option of the Borrower, in each case without duplication of any such reduction from the definition of “Excess Cash Flow” by such amounts, be deemed to allow reduced on a dollar-for-dollar basis for such fiscal year by the Borrower Parties to issue Equity Interests aggregate amount of clauses (c)(ii), (vii), (ix), (x), (xii), (xiv), (xv), (xvi) and (xviii) of the definition of “Excess Cash Flow” for such Excess Cash Flow Period or incur Funded Debt except as otherwise not prohibited by this Agreement after year-end and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) prior to the contrarytime such Excess Cash Flow payment is due; provided further, each Lender shall be permitted in its sole discretion that, to decline all or the extent any portion of any mandatory prepayment required reduction is made pursuant to the terms hereofforegoing proviso after year-end and prior to when such Excess Cash Flow prepayment is due, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower such prepayment shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except not be deducted with respect to prepayments required pursuant the Excess Cash Flow prepayment for the succeeding fiscal year; provided, further that the Total Net Leverage Ratio in the definition of “Excess Cash Flow Percentage” shall be recalculated to give pro forma effect to any amount referred to in clause (v2) above, deliver above that is paid or otherwise realized or accounted for after the end of the applicable fiscal year but prior to the Administrative Agent at least three Business Days prior to making of each the Excess Cash Flow payment required for such prepayment, a certificate signed by an Authorized Signatory Excess Cash Flow Period. Prepayment of the Borrower setting forth in reasonable detail any Term Loans (and the calculation of the amount of such prepayment. Each notice ) shall be made under this Section 2.09(b)(iv) with respect to the amount (if any) of prepayment shall specify Excess Cash Flow for such period in excess of $10,000,000 and solely to the prepayment date and the principal amount of such required prepayment in excess thereof.
(v) [Reserved];
(vi) Within 15 months after the Term Loans receipt of any Net Cash Proceeds from Asset Sales or Casualty Events, Holdings or any Subsidiary thereof, as applicable, may apply such Net Cash Proceeds to make Capital Expenditures or to acquire replacement assets or assets that will be useful in the business of Holdings or any Subsidiary thereof; provided, that the Borrower shall deliver a Reinvestment Notice to the Administrative Agent (which shall promptly transmit such Reinvestment Notice to the Lenders) on or prior to the date on which such mandatory prepayment would otherwise be required to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.made under this Section
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Mandatory Prepayments. (ia) [Reserved]Not later than the fifth Business Day following the receipt by the Borrower or any of its Non-Regulated Subsidiaries of any cash deferred consideration (other than working capital adjustments of up to $3,800,000) or released escrow amounts under the Retail Sale Purchase Agreement, the Borrower shall apply the Required Prepayment Percentage of such deferred consideration or released escrow amounts to prepay the outstanding principal amount of the Loans.
(iib) Not later than the fifth Business Day following the completion of any Asset Sale (other than, subject to clause (a) above, the Retail Sale) or the occurrence of any Recovery Event, in each case by the Borrower or any Subsidiary thereof, the Borrower shall apply the Required Payment Percentage of the Net Cash Proceeds received with respect thereto to prepay the outstanding principal amount of the Loans.
(c) Not later than the fifth Business Day following the occurrence of an Equity Issuance, the Borrower shall apply the Required Prepayment Percentage of the Net Cash Proceeds therefrom to prepay the outstanding principal amount of the Loans.
(d) In the event that, after the Agreement Date, that any Borrower Loan Party or any Subsidiary of a Borrower Loan Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Loan Party or any Subsidiary of a Loan Party (other than Indebtedness permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such Subsidiary, apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay the outstanding principal amount of the Loans. For the avoidance of doubt, this paragraph (d) in no event or circumstances shall be interpreted to permit the Borrower to incur any Funded Debt other than Funded Debt Indebtedness that is not permitted under Section 8.16.01.
(e) No later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, one hundred percent commencing with the fiscal year ending on December 31, 2013 and (100%ii) the date upon which the financial statements with respect to such period are delivered pursuant to Section 5.04(a), the Borrower shall prepay the outstanding principal amount of the Loans in an amount equal to (x) the amount the Required Prepayment Percentage of Excess Cash Flow for the fiscal year then ended (or, for the fiscal year ending on December 31, 2013, for the period commencing on October 1, 2013 and ending on December 31, 2013), plus (y) 75% of any Distribution made by any Regulated Insurance Subsidiary to the Borrower or any Subsidiary (other than a Regulated Insurance Subsidiary) during the fiscal year then ended (or, for the fiscal year ending on December 31, 2013, for the period commencing on October 1, 2013 and ending on December 31, 2013), less (z) an amount equal to the aggregate amount of all permanent repayments of the Loans (other than mandatory prepayments of Loans under Section 2.13 hereof) made by the Borrower and the Subsidiaries during such fiscal year (or, for the fiscal year ending on December 31, 2013, for the period commencing on October 1, 2013 and ending on December 31, 2013), but only to the extent that such prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or any portion of such Indebtedness.
(f) Not later than the fifth Business Day following receipt by the Borrower or any Subsidiary of any Extraordinary Receipts (other than Extraordinary Receipts received by a Regulated Insurance Subsidiary which do not exceed $500,000), the Borrower shall apply the Required Prepayment Percentage of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt with respect thereto to prepay the outstanding principal amount of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any saleLoans; provided, transferthat, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss receipt of any Collateral or other assets of Extraordinary Receipts by a Regulated Insurance Subsidiary, any Borrower Party prepayment pursuant this Section 2.13(f) shall be paid within two (2) Business Days subject to applicable Requirements of Law and the receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds approvals from any Governmental Authority, if any, and Borrower shall use commercially reasonable efforts to obtain such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, approvals so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder there is a reasonable expectation of the intent to reinvest receiving such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Periodapprovals.
(ivg) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any The Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on , at the principal amount time of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c2.13, (i) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepaymentprepayment and (ii) to the extent practicable, at least three Business Days prior written notice of such prepayment (other than any prepayment with respect to Section 2.13(e) above). Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. All prepayment amounts (other than prepayments with respect to Section 2.13(a) above) will be applied on a pro rata basis to the remaining scheduled installments of principal of the Loans, regardless of Type. All prepayment amounts with respect to Section 2.13(a) above will be applied first to the next six remaining scheduled installments of principal of the Loans in direct order of maturity, regardless of Type, and second on a pro rata basis to the remaining scheduled installments of principal of the Loans, regardless of Type. All prepayments under this Section 2.13 shall be subject to Section 2.16 and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment. All prepayments under Sections 2.13(b), (c), (d) and (f) shall be accompanied by the Applicable Prepayment Premium, if any, payable in connection with such prepayment of the Loans.
(h) Notwithstanding anything to the contrary hereincontained above in this Section 2.13, failure to provide the extent that (i) funds for any prepayment otherwise required to be made pursuant to the terms of Section 2.13(b) are only available to the Borrower through dividend payments to the Borrower from one or more Regulated Insurance Subsidiaries, (ii) such notice hereunder dividend payments cannot be made at such time within the ordinary dividend-paying capacity of such Regulated Insurance Subsidiary or Subsidiaries and, accordingly, require specific affirmative regulatory approval for the payment of extraordinary dividends and (iii) after due written application or request, such approval for the payment of extraordinary dividends is not obtained by such Regulated Insurance Subsidiary, upon certification by the Borrower to the Administrative Agent to such effect (together with, in the case of an application or request for regulatory approval, copies of all documents submitted, and all written responses received, in connection therewith), the Borrower shall not preclude the Borrower’s ability not, to such extent, be required to make such prepayment hereunderfor so long as (but only for so long as) such dividend payments may not, for such reasons, be made, provided that promptly upon any such restrictions no longer being applicable, any such accrued prepayments that would be delinquent but for the foregoing provisions shall be made with the proceeds of any dividends or other distributions no longer subject to such restrictions.
Appears in 1 contract
Sources: Credit Agreement (Affirmative Insurance Holdings Inc)
Mandatory Prepayments. (a) Unless the Required Prepayment Lenders shall otherwise agree:
(i) [Reserved].
(ii) In the event that, after the Agreement Date, if any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Non-Recourse Debt permitted under by Section 8.17.2(i)(i)(A) shall be incurred, one hundred percent (then on the date of such incurrence, the Loans shall be prepaid by an amount equal to 100%) % of the amount of the Net Cash Proceeds received by of such incurrence, as set forth in Section 2.10(d);
(ii) if any Borrower Party or such Subsidiary from such incurrence Sale and Leaseback Transaction shall be paid within one (1) Business Day consummated in respect of receipt any fee-owned property owned by the Borrower or any Class I Restricted Subsidiary on the Closing Date, or acquired by the Borrower or any Class I Restricted Subsidiary after the Closing Date in a transaction of the proceeds thereof type described in Section 7.5(f) in exchange for any real property listed on Schedule 7.11 that is not Mortgaged Property, then, on the date of consummation of such transaction, unless a Reinvestment Notice shall have been delivered in respect thereof, the Loans shall be prepaid by such Borrower Party an amount equal to the Lenders as a mandatory prepayment 100% of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) amount of the Net Cash Proceeds from of such transaction (excluding any sale, transfer, assignment or other disposition, whether voluntaryamounts subject to any such Reinvestment Notice), as a result set forth in Section 2.10(d);
(iii) if any Sale and Leaseback Transaction shall be consummated in respect of any enforcement action fee-owned property acquired by the Borrower or any member of Class I Restricted Subsidiary after the Lender Group or otherwise Closing Date (other than a property acquired after the Closing Date in a transaction of the type described in Section 7.5(f)), then, on the date of consummation of such transaction, unless (x) if, on the date of consummation of such transaction, the aggregate value of all leasehold and fee-owned real property of the Borrower and the Subsidiary Guarantors subject to a Mortgage (valued in accordance with Schedule 6.9; such value to be demonstrated to the reasonable satisfaction of the Administrative Agent) is less than 325% of the Assumed Loan Amount, the Borrower shall have agreed to furnish to the Administrative Agent, within 45 days after the date of consummation of such transaction, a Mortgage with respect to such real property, together with any certificates and documents reasonably requested by the Administrative Agent and (y) a Reinvestment Notice shall have been delivered in respect thereof, the Loans shall be prepaid by an amount equal to 100% of the amount of the Net Cash Proceeds of such transaction (excluding any amounts subject to any such Reinvestment Notice), as set forth in Section 2.10(d); and
(iv) on each Reinvestment Prepayment Date, the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the salerelevant Sale and Leaseback Transaction, transfer as set forth in Section 2.10(d); provided that, if the Consolidated Senior Leverage Ratio for the period most recently ended prior to the date of consummation of the relevant transaction described above in this Section 2.10 is less than 1.0 to 1.0, the percentage of Net Cash Proceeds required to be prepaid pursuant to this Section 2.10(a) shall be 50%. The provisions of this Section do not constitute a consent to the incurrence of any Indebtedness by the Parent, Holdings, the Borrower or disposition any of assets its Subsidiaries not permitted under clauses by Section 7.2 or the consummation of any sale and leaseback transaction not permitted by Section 7.11.
(ib) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Parent, Holdings, the Borrower or any of its Class I Restricted Subsidiaries shall incur any Indebtedness (excluding the Indebtedness referred to in Section 2.10(a) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations Indebtedness incurred in accordance with Section 2.6(b7.2, other than Indebtedness under Section 7.2(h)(ii)), 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 Section 2.10(d). Notwithstanding The provisions of this Section do not constitute a consent to the foregoingincurrence of any Indebtedness by the Parent, unless an Event of Default shall have occurred and be continuing or would result therefromHoldings, the Borrower Parties may elect to reinvest or any of its Subsidiaries not permitted by Section 7.2.
(c) Unless the Required Prepayment Lenders shall otherwise agree, if on any date the Parent, Holdings, the Borrower or any of its Class I Restricted Subsidiaries shall receive Net Cash Proceeds from any such saleAsset Sale or Recovery Event then, transferunless a Reinvestment Notice shall be delivered in respect thereof, assignment or other disposition on the date of receipt by the Parent, Holdings, the Borrower or any of its Class I Restricted Subsidiaries of such casualty or condemnation loss of any Collateral or such other assetsNet Cash Proceeds, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior Loans shall be prepaid by an amount equal to the date any payment thereof would have been required hereunder amount of the intent to reinvest such Net Cash Proceeds (excluding any amounts subject to any such Reinvestment Notice), as set forth in similar assets for Section 2.10(d); provided, that, notwithstanding the business foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Borrower Party Reinvestment Notice shall not exceed (which assets shall be consistent with the assets utilized by such Borrower Party A) $250,000,000 in the ordinary course of its business) and identifies aggregate during the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale Facilities and (B) $50,000,000 not otherwise reinvested or receipt of insurance proceeds applied to prepay the Loans at any one time outstanding and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) on each Reinvestment Prepayment Date the Loans shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn prepaid by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event, as set forth in Section 2.10(d). The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.5.
(d) Amounts to be applied as prepayments pursuant to Section 2.10(a)(i) shall be applied) , first, to repay amounts outstanding under the Revolving Credit Facility, and second, to the prepayment of the Obligations as set forth above in Section 2.6(b) Term Loans, and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required all other amounts to be applied as prepayments pursuant to prepay the Obligations in accordance with this Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) , first, to the prepayment of the Obligations as set forth above in Section 2.6(b) Term Loans and (b) deliver a certificate from the Borrower second, to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days prepayment of the date of receipt of Revolving Credit Loans. Any such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations Revolving Credit Loans pursuant to this Section 2.10 shall not result in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory mandatory reduction of the Borrower Parties certifying the manner Revolving Credit Commitments. Amounts prepaid in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount respect of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c2.10 may not be reborrowed.
(e) If any of the 8-1/2% Senior Subordinated Notes remain outstanding as of April 30, 2008 (the "Early Maturity Date"), automatically the Commitments shall be applied first to Base Rate Advances immediately terminate and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by shall prepay all outstanding Loans hereunder, together with any accrued interest thereon, and all other amounts owing under this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to Documents (including, without limitation, all amounts of L/C Obligations, whether or not the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory beneficiaries of the Borrower setting forth in reasonable detail then outstanding Letters of Credit shall have presented the calculation of documents required thereunder) on the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderEarly Maturity Date.
Appears in 1 contract
Mandatory Prepayments. The Company shall, subject to the terms of the Subordination Agreement and subject to Purchaser's right in its sole discretion to waive such prepayments, make mandatory prepayments in each of the following circumstances:
(a) Concurrently with an Initial Public Offering by the Company or any of its Subsidiaries of any of the Company's or its Subsidiaries’ debt or equity securities, the Company shall prepay the Senior Subordinated Obligations in an amount equal to the lesser of the (i) [Reserved].
net proceeds of any such Initial Public Offering or (ii) In the event that, after the Agreement Date, aggregate amount of all Senior Subordinated Obligations (including any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(bYield Maintenance Fee).
(iiib) One hundred percent (100%) of If during any fiscal year the Net Cash Proceeds from any sale, transfer, assignment Company or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group its Subsidiaries shall sell or otherwise dispose of (other than with respect as permitted by Section 6.9 or Section 7.3) any property or properties, then, to the saleextent any proceeds remain after prepayment of the Senior Debt pursuant to the Senior Loan Documents, transfer or disposition the Company shall prepay the Senior Subordinated Obligations in an amount equal to the lesser of assets permitted under clauses (i) and the aggregate net cash proceeds of such sales or other dispositions or (ii) the aggregate amount of Section 8.7(b)all Senior Subordinated Obligations (including any Yield Maintenance Fee), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall such prepayment to be paid made within two (2) Business Days of receipt thereof by of such net proceeds.
(c) If at any Borrower Party as time a mandatory prepayment Change of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default Control shall have occurred and be continuing or would result therefromoccur, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss Company shall prepay all Senior Subordinated Obligations.
(d) In the event of any Collateral collection of or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn realization by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, Purchaser upon the Administrative Agent’s request any Collateral following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds the Company shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Senior Subordinated Obligations in an amount equal to fifty percent the lesser of (50%i) the aggregate net cash proceeds of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(ball collections or other realizations of Collateral by Purchaser or (ii) the aggregate amount of all Senior Subordinated Obligations (including any Yield Maintenance Fee). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vie) In the event of any sale or other disposition of all or substantially all of the stock or assets of the Company or any Subsidiary of the Company in a single transaction or series of transactions (other than as permitted by Section 6.9 or Section 7.3), the Company shall prepay the Senior Subordinated Obligations in an amount equal to the lesser of (i) the aggregate net cash proceeds of such sales or dispositions or (ii) the aggregate amount of all Senior Subordinated Obligations.
(f) Notwithstanding Section 2.1 hereof and the terms of any Deferral Note, commencing with the first “accrual period” (as defined for purposes of the Code) ending after the fifth anniversary of the Closing Date, the Company must and shall pay in cash, on or before the end of such accrual period, the outstanding principal amount and all accrued and unpaid interest under any Deferral Note if, but only to the extent that, the aggregate amount outstanding under any Deferral Note, and any unpaid interest that has accrued and not been paid thereon in cash from the Closing Date through the end of such accrual period, exceeds the product of the “issue price” (as defined for purposes of the Code) for the Senior Subordinated Note and the “yield to maturity” (as defined for purposes of the Code) on the Senior Subordinated Note. Any payments due prepayment under this Section 2.6(c) 2.3 shall be accompanied by all subject to payment of (i) accrued unpaid interest on the principal amount prepaid, plus (ii) if the prepayment is made on any day other than the last day of the Loans being month, an amount equal to the interest which would have been earned on the amount prepaid and applied in through the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters last day of the applications set forth abovemonth, plus (iii) a Yield Maintenance Fee. Any such prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then accrued interest on the Senior Subordinated Note, second to Eurodollar Advances the Deferral Note, if any, third to any Yield Maintenance Fee, fourth to any expenses for which Purchaser may be entitled, fifth to installments of principal in direct the inverse order of Eurodollar Advance Period maturitiestheir maturities on the Senior Subordinated Note, and sixth if the Senior Subordinated Note is being prepaid in full, the aggregate amount of all other Subordinated Obligations. Nothing in this Section 2.6(c) shall The amount of any such mandatory prepayment may not be deemed to allow reborrowed by the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and Company from the other Loan DocumentsPurchaser. Notwithstanding anything contained in this Section 2.6(c) Anything herein to the contrary, each Lender shall be permitted notwithstanding, in its sole discretion the circumstances described in Sections 2.3(c) and (e) the Purchaser agrees to decline all or any portion of any mandatory prepayment required pursuant to waive the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)Yield Maintenance Fee.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
During any Dominion Trigger Period, all funds deposited into any Dominion Account shall automatically be dispersed to repay the outstanding Revolving Loans (ii) In for the event avoidance of doubt, it being understood and agreed that, after such repayment and subject to the Agreement Dateother terms herein, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent Borrowers may reborrow hereunder in accordance with the terms herein);
(100%b) of Concurrently with the Net Cash Proceeds received receipt by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the any net cash proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result Asset Disposition of any enforcement action by any member of the Lender Group or otherwise Collateral (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)a Permitted Asset Disposition), or casualty or condemnation loss in an amount equal to 100% of such Asset Disposition;
(c) Concurrently with the receipt of any Collateral or other assets proceeds of insurance paid in respect of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest Borrowers shall prepay Revolver Loans in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) proceeds, subject to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.8.6.2;
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of Concurrently with the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such any net cash proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the issuance of any Debt of any Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with excluding Debt permitted by Section 2.6(b10.2.1) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) 100% of Excess Cash Flow such net cash proceeds to the extent not used for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied Acquisitions by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentconsummated within one hundred eighty (180) days thereafter.
(vie) Any payments due under this Section 2.6(cConcurrently with any issuance of Equity Interests by a Borrower (excluding any issuance of Equity Interests; (w) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject connection with a Permitted Acquisition; (x) pursuant to any applicable prepayment premiums set forth herein employee or director option program, benefit plan or compensation program; (y) by a Subsidiary to Titan International or another Subsidiary to Titan International or another Subsidiary or (z) if waived by the Required Lenders, in connection with a Change of Control of any Borrower), Borrowers shall prepay Revolver Loans in an amount equal to the net proceeds of such issuance (except to the extent that such proceeds are intended to be, and in the other Loan Documents. Within the parameters fact are, reinvested within 180 days from such date of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(cissuance).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit and Security Agreement (Titan International Inc)
Mandatory Prepayments. (ia) [Reserved].
(ii) In Not later than the event that, after third Business Day following the Agreement Date, receipt of Net Cash Proceeds in respect of any Borrower Asset Sale by any Loan Party or any Subsidiary subsidiary of a Loan Party, the Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (apply 100%) % of the Net Cash Proceeds received with respect thereto to prepay outstanding Term Loans.
(b) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from the issuance of Permitted Indebtedness), the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Cash Proceeds by any Borrower such Loan Party or such Subsidiary from subsidiary, apply an amount equal to 100% of such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party Net Cash Proceeds to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)prepay outstanding Term Loans.
(iiic) One hundred percent (Not later than the third Business Day following the receipt of Net Cash Proceeds in respect of any Casualty Event by any Loan Party or any subsidiary of a Loan Party, the Borrower shall apply 100%) % of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than received with respect thereto to prepay outstanding Term Loans.
(d) Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated pro rata between all Term Loans.
(e) The Borrower shall deliver to the saleAdministrative Agent, transfer or disposition at the time of assets permitted each prepayment required under clauses this Section, (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three Business Days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Type of each Loan being prepaid and the principal amount of the Term Loans each Loan (or portion thereof) to be prepaid. Notwithstanding anything All prepayments of Borrowings under this Section shall (1) be subject to Section 2.05(c) and Section 2.16, but shall otherwise be without premium or penalty, and (2) shall be accompanied by accrued and unpaid interest on the contrary herein, failure principal amount to provide such notice hereunder shall not preclude be prepaid to but excluding the Borrower’s ability to make such prepayment hereunderdate of payment.
Appears in 1 contract
Mandatory Prepayments. (a) In the event of an Asset Disposition by, or Casualty Event with respect to, the Parent or any Credit Party, the Company shall, within two Business Days of such Asset Disposition or Casualty Event, terminate Secured Prepaid Forward Arrangements in an aggregate amount equal to the amount of Net Proceeds therefrom and apply such Net Proceeds thereunder; provided that, this clause (a) shall not apply to (x) any Net Proceeds received by the Parent in connection with any Asset Disposition of, or Casualty Event with respect to, any assets, rights, property that do not constitute FAD Property Collateral; and (y) other than with respect to any Asset Disposition of, or Casualty Event relating to, any FAD Property Collateral, that portion of such Net Proceeds which, when aggregated with the Net Proceeds from any other Asset Disposition made or Casualty Event experienced in the same Fiscal Year in respect of which payment has not been made pursuant to this clause (a), is less than U.S.$ [Redacted – commercially sensitive information].
(b) The Company shall, within two Business Days of:
(i) [Reserved]any sale or issuance of any Equity Securities by the Parent or the Company;
(ii) the issuance or incurrence of any Indebtedness by the Parent or the Company;
(iii) the grant of any royalty, or the entry into of any Prepaid Forward Arrangement (other than a Secured Prepaid Forward Arrangement), by the Parent or a Credit Party,
(iv) terminate Secured Prepaid Forward Arrangements in an aggregate amount equal to the amount of Net Proceeds therefrom and apply such proceeds thereunder.
(c) The Company shall provide to the Bank immediate written notice of event described in (a) or (b) above; provided that any failure to do so shall not relieve the Company of its obligations pursuant to this Section 2.1.
(i) The Company covenants and agrees to obtain from the Parent, by way of a purchase or other acquisition by the Parent of Equity Securities of the Company or by making a capital contribution to the Company: (A) all Net Proceeds that are received by the Parent and which are required to be applied by the Company upon the termination of Secured Prepaid Forward Arrangements pursuant to this Section 2.1 so as to permit the Company to make all payments required by this Section 2.1 within the timeframes set forth herein; and (B) such other amounts as may be necessary for the Company to make all other payments to the Bank from time to time required pursuant to the terms of the Secured Prepaid Forward Arrangements.
(ii) In The Company represents and warrants that the event thatParent is not a party to, after and the Agreement DateCompany covenants and agrees that it shall cause the Parent to not become a party to, any Borrower Party indenture, agreement or other instrument that:
(A) requires that any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by the Parent, the Company or any Borrower other Credit Party from any event described in clauses (a) or (b) of this Section 2.1 be applied in repayment of any obligations, liabilities or indebtedness outstanding under any such Subsidiary indenture, agreement or other Supplementary Terms Agreement – Paycore Minerals Inc. instrument, other than Net Proceeds received by the Parent in connection with any Asset Disposition of, or Casualty Event with respect to, any assets, rights, property that do not constitute FAD Property Collateral; or
(B) prohibits or otherwise restricts the Parent from such incurrence shall be paid within one making the investments in the Company required pursuant to Section 2.1(d)(i), other than those prohibitions and restrictions contained in indentures, agreements or other instruments in respect of which (1I) Business Day of receipt of the proceeds thereof by such Borrower Party Company has delivered to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any saleBank, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of Closing Date, a consent from each counterparty to such indentures, agreements or other instruments consenting to the intent to reinvest Parent making such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party investments in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is Company required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b2.1(d)(i), ; or (BII) the date on which such financial statements were required Parent is able to be delivered pursuant to Section 7.1(b) (satisfy the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance conditions with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything respect thereto contained in this Section 2.6(c) to the contrarysuch indentures, each Lender shall be permitted in its sole discretion to decline all agreements or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)instruments.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. Upon the occurrence of (ix) [Reserved].
a Casualty Event which, when take together with all other Casualty Events occurring in any fiscal year, results in net insurance proceeds in excess of $500,000 in such fiscal year, or (iiy) In an Asset Sale (not otherwise permitted by Section 9.09) which, when take together with all other such Asset Sales occurring in any fiscal year, results in net sale proceeds in excess of $500,000 in such fiscal year, the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as make a mandatory prepayment to the Lender in an amount equal to 100% of the Obligations net insurance or net sale proceeds, as the case may be, received by the Borrower in accordance with Section 2.6(b).
(iii) One hundred percent (100%) respect of the Net Cash Proceeds from any saleforgoing, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party which amount shall be paid within two (2) Business Days of receipt thereof by any Borrower Party applied as a mandatory prepayment of the Obligations set forth in accordance with Section 2.6(b3.03(c). Notwithstanding the foregoing; provided that, unless an Event of so long as no Default shall have occurred and be continuing or would shall result therefrom, the Borrower Parties may elect use proceeds received in connection with any Casualty Event or Asset Sale, as the case may be, to reinvest Net Cash Proceeds from any acquire or repair fixed or capital assets useful in the Borrower’s or its Subsidiaries’ businesses, as long as such saleinvestment is made within six (6) months of such Casualty Event or Asset Sale, transferas the case may be, assignment or other disposition nine (9) months of such Casualty Event or any such casualty or condemnation loss of any Collateral or such other assetsAsset Sale, as the case may be, so long as Borrower or its Subsidiaries has entered into a binding contract therefor within six (6) months of the Borrower Parties (a)(i) notify Casualty Event or Asset Sale, as the Administrative Agent case may be, in writing on which case, no prepayment is required hereunder. Any term or prior provision hereof to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoingcontrary notwithstanding, unless an Event of Default shall have occurred and be continuing the Required Lenders otherwise consent in writing, no Asset Sale is permitted hereunder or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long any other Loan Document other than as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered expressly permitted pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent9.09.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Sonendo, Inc.)
Mandatory Prepayments. (a) Subject to the provisions of paragraphs (c), (d), and (e) below, following any issuance of debt obligations or preferred stock of the Company or any of its Subsidiaries (other than Indebtedness of the Company or any of its Subsidiaries permitted to be issued under subsection 9.2), an amount equal to 100% of the Net Proceeds of such debt or preferred stock issuance shall, unless the Company and the Required Lenders otherwise agree, be applied by the Company on the date of receipt thereof to the prepayment of the Term Loans.
(i) [Reserved].
Subject to paragraphs (iic), (d), and (e) In below, following the event that, after consummation of any Asset Sale by the Agreement Date, any Borrower Party Company or any Subsidiary of a Borrower Party shall incur its Subsidiaries, in the case of cash proceeds, and following receipt of cash proceeds representing payments under notes or other securities received in connection with any Funded Debt other than Funded Debt permitted under Section 8.1non-cash consideration obtained in connection with such Asset Sale, one hundred percent (an amount equal to 100%) % of the Net Cash Proceeds received of such Asset Sale shall, unless the Company and the Required Lenders otherwise agree, be applied by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day the Company on the date of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)Term Loans. Notwithstanding the foregoing, unless an if no Default or Event of Default shall have occurred and shall be continuing at the time of such Asset Sale or would result therefromat the proposed time of the application of such proceeds, such proceeds shall not constitute Net Proceeds except to the extent that within 360 days of receipt of such proceeds, they have neither been reinvested in productive assets of a kind then used or usable in the business of the Company and its Subsidiaries nor contractually committed (and any such proceeds not applied to such contractual commitments at the time required shall be deemed to be Net Proceeds to be applied as set forth in this subsection) to be used for such purposes, at which time all such proceeds shall be deemed to be Net Proceeds.
(ii) Subject to paragraphs (c), (d), and (e), if for any fiscal year of the Company, commencing with its fiscal year ending on December 31, 2006, (A) there shall be Excess Cash Flow for such fiscal year, and (B) the Secured Leverage Ratio as of the last day of such fiscal year was greater than or equal to 2.5 to 1, then, on or prior to April 30 of the following fiscal year, an amount equal to 50% of such Excess Cash Flow shall be applied, to the prepayment of the Term Loans.
(iii) Upon Condemnation Awards or Insurance Proceeds in an amount equal to $2,000,000.00 or more in respect of any event or series of related events being received by or paid to or for the account of the Company or any of its Subsidiaries (other than the first $5,000,000.00 in Condemnation Awards or Insurance Proceeds received by the Company in any fiscal year), and not otherwise included in Section 5.6(a), the Borrower Parties may elect Company shall prepay an aggregate principal amount of Term Loans equal to reinvest Net Cash 100% of all Condemnation Awards and/or Insurance Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral received therefrom immediately upon receipt thereof by the Company or such other assetsSubsidiary; provided, so long however, that with respect to any Insurance Proceeds or Condemnation Awards which constitute Reinvestment Funds, at the election of the Company (as notified by the Borrower Parties (a)(i) notify Company to the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date receipt of such sale Insurance Proceeds or receipt of insurance proceeds Condemnation Awards), and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations long as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of no Default shall have occurred and be continuing or would result therefrom, and such funds satisfy the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) requirements of the definition thereofof "Reinvestment Funds", so long as the Borrower Parties (a)(i) notify Company or such Subsidiary may apply within 364 days after the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; and (ii) confirm provided, further, however, that such Extraordinary Receipts have been deposited into a Blocked Account, any cash proceeds not so applied or which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing fail to satisfy the payment requirements of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business definition of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts "Reinvestment Funds" shall be applied) immediately applied to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment PeriodTerm Loans.
(vc) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, Partial prepayments of the Term Loans pursuant to this Section 2.6(c) subsection 5.5 or 5.6 shall be applied first to Base Rate Advances the next four quarterly installments, and then to Eurodollar Advances the remaining installments on a pro rata basis, in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow each case pro rata as between the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement Tranche B Term Loans and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(cAdditional Term Loans, if any.
(d) to Upon receipt by the contrary, each Lender shall be permitted in its sole discretion to decline all Company or any portion of its Subsidiaries of the amounts required to be paid pursuant to clause (i) of paragraph (b) above from any Asset Sale consisting of the sale of shares of capital stock of any mandatory prepayment required pursuant Subsidiary of the Company (or, upon receipt by the Company or its Subsidiaries of such amounts as are permitted to the terms hereof, other than mandatory prepayments required under be retained in accordance with clause (ve) of this Section 2.6(csubsection 5.6).
, (vii1) The Borrower the Administrative Agent shall give prior written notice release to the Company, without representation, warranty or recourse, express or implied, those of such shares of capital stock of such Subsidiary held by it as Pledged Stock (as defined in the Company Pledge Agreement) and (2) the Agents and the Lenders will, upon the request of the Company, execute and deliver any prepayment required under this Section 2.6(c) instrument or other document in a form acceptable to the Administrative Agent which may reasonably be required to evidence such release.
(e) In the event and on such occasion that the Aggregate Revolving Credit Extensions of Credit and Swing Line Loans exceed the aggregate Revolving Credit Commitments, the Company shall prepay Revolving Credit Loans or Swing Line Loans (or, if no such Loans are outstanding, deposit cash collateral in an account with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to such excess.
(f) The Company shall give the Administrative Agent (which shall promptly notify each Lender) notice as far specified in advance thereof subsection 5.5 of each prepayment pursuant to subsection 5.5 setting forth the date and amount thereof. Prepayments of Eurodollar Loans pursuant to this subsection 5.6, if not on the last day of the Interest Period with respect thereto, shall, at the Company's option, as long as no Default or Event of Default has occurred and is continuing, be prepaid subject to the provisions of subsection 5.21 or such prepayment (after application to any ABR Loans, in the case of prepayments by the Company) shall be deposited with the Collateral Agent as cash collateral for such Eurodollar Loans on terms reasonably practicable satisfactory to the Collateral Agent and thereafter shall be applied to the prepayment of the Eurodollar Loans on the last day of the respective Interest Periods for such Eurodollar Loans next ending most closely to the date of receipt of such Net Proceeds, Insurance Proceeds or Condemnation Awards, as applicable. After such application, any remaining interest earned on such cash collateral shall be paid to the Company.
(and in any event at least three Business Days prior thereto)g) Upon the Revolving Credit Termination Date the Company shall, and, except with respect to prepayments required pursuant each then outstanding Letter of Credit, if any, either (i) cause such Letter of Credit to clause be cancelled without such Letter of Credit being drawn upon or (vii) above, deliver collateralize the Revolving L/C Obligations with respect to such Letter of Credit with a letter of credit issued by banks or a bank satisfactory to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything on terms satisfactory to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderAdministrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Be Aerospace Inc)
Mandatory Prepayments. (ia) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within Within one (1) Business Day following receipt by any Loan Party or any Subsidiary of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the any Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group sale or otherwise disposition (other than with respect to the sale, transfer a sale or disposition permitted by subsections (a) through (e) of Section 9.6) by any Loan Party or any Subsidiary of any of its assets permitted under clauses (including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division (unless the Delaware Divided LLC becomes a Loan Party concurrently therewith), but excluding dispositions (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party inventory in the ordinary course of its businessbusiness and (ii) by a Loan Party or Subsidiary to a Loan Party), or from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrowers shall prepay Term Loans in an amount equal to all such Net Cash Proceeds, in each case, to the extent that, (x) except in the case of any Real Estate subject to a Mortgage at the time of such disposition, (1) the aggregate amount of such Net Cash Proceeds received by the Loan Parties and their Subsidiaries exceeds $500,000 in any Fiscal Year (and thereafter only proceeds in excess of such amount shall be subject to the requirements of this Section 3.5(a)) and identifies (2) such Net Cash Proceeds are not reinvested in assets (excluding current assets as classified in accordance with GAAP) that are used or useful in the long-term assets which shall constitute such reinvestment business of the Loan Parties and their Subsidiaries, taken as a whole, within 180 365 days of the date of such sale sale, disposition or (in the case of a casualty, eminent domain or condemnation event or similar proceeding) receipt of insurance proceeds and (ii) confirm it being understood that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) prepayment shall constitute Collateral, securing be due immediately upon the payment expiration of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and period to the extent such Net Cash Proceeds are not fully reinvested during so reinvested); provided that such reinvestment right shall only be available if the Borrowers shall have notified the Administrative Agent of the intention to reinvest such Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of the occurrence of the applicable sale, disposition, casualty event or eminent domain, condemnation or similar proceeding; provided further that any Net Cash Proceeds received from the sale or disposition of assets owned by a Loan Party and reinvested pursuant to this clause (x) shall be reinvested in assets owned by a Loan Party, or (y) in the case of any Real Estate subject to a Mortgage at the time of such disposition, such Net Cash Proceeds are not reinvested in real or personal property that constitutes Collateral within 365 days of the date of such sale, disposition or (in the case of a casualty, eminent domain or condemnation event or similar proceeding) receipt thereof by of proceeds (it being understood that such prepayment shall be due immediately upon the Borrower Parties expiration of the applicable period to the Lenders as a mandatory extent such Net Cash Proceeds are not so reinvested). Any such prepayment shall be applied in accordance with clause (d) of this Section 3.5.
(b) Immediately upon the receipt by any Loan Party or any Subsidiary of Net Cash Proceeds of any issuance of Indebtedness (other than Indebtedness permitted under Section 9.1), the Borrowers shall prepay the Obligations in accordance with clause (d) of this Section 2.6(b3.5 in an amount equal to such Net Cash Proceeds.
(c) Within five (5) Business Days after the quarterly financial statements have been delivered pursuant to Section 7.1(b). Notwithstanding , beginning with the foregoingFiscal Quarter ending June 30, unless an Event of Default shall have occurred and be continuing or would result therefrom2021, the Borrower Parties may elect Borrowers shall prepay the Obligations in accordance with clause (e) of this Section 3.5 by an amount equal to reinvest amounts constituting Extraordinary Receipts under (i) 75% of Consolidated Excess Cash Flow for the most recently completed Fiscal Quarter minus (ii) all voluntary prepayments of Loans during such Fiscal Quarter pursuant to Section 3.4; provided that if the Consolidated Leverage Ratio as of the end of such Fiscal Quarter is less than 4.00:1.00, such percentage shall be reduced to 50% of Consolidated Excess Cash Flow for such Fiscal Quarter. Any such prepayment shall be applied in accordance with clause (d) of this Section 3.5.
(d) Any prepayments made by the Borrowers pursuant to clauses (a), (b) or (dc) of the definition thereofthis Section 3.5 shall be applied as follows: first, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following fees and reimbursable expenses then due and payable pursuant to any of the occurrence Loan Documents; and during the continuance of an Event of Defaultsecond, be applied (or an amount equal to such Extraordinary Receipts shall be applied) ratably to the prepayment principal balance of the Obligations as set forth above Initial Term Loan and any Incremental Term Loans (unless, in Section 2.6(b) and (b) deliver the case of any such Incremental Term Loan, the documentation establishing such Incremental Term Loan provides for a certificate from treatment that is less than ratable with the Borrower Initial Term Loan), until the same shall have been paid in full, pro rata to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt Lenders based on their Pro Rata Shares of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If Term Loans, and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay installments of such Term Loans (including the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(cat maturity thereof) shall be accompanied by all accrued interest on in inverse order of maturity. In the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of event that the Term Loans are repaid in full, no prepayments shall be required pursuant to this Section 2.6(c3.5.
(e) In addition to the amortization payments required by Section 3.1(c) and the other mandatory prepayments required above in this Section 3.5, the Borrower shall repay, not later than September 4, 2021, not less than $11,700,000 of the principal balance of the Initial Term Loan, which payment shall be applied to installments of the Initial Term Loan (including the payment due at maturity thereof) in inverse order of maturity; provided that the principal amount required to be repaid under this Section 3.5(e) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow reduced by the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion amount of any mandatory prepayment reduction in the aggregate amount required pursuant to be maintained in the Restricted Accounts under Section 7.11(c) in accordance with the terms hereofof Section 7.11(c) (for the avoidance of doubt, other than mandatory prepayments the principal amount required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required to be repaid under this Section 2.6(c3.5(e) to the Administrative Agent as far in advance thereof as is reasonably practicable (and shall not be less than $10,000,000 in any event at least three Business Days prior theretoevent), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
Promptly (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate but in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid event within five (5) Business Days of Days) upon receipt thereof by the Borrower Parties Issuer or any of its Subsidiaries of Net Cash Proceeds in excess of $1,000,000 in the aggregate during any Fiscal Year from any Prepayment Event, in each case, which Net Cash Proceeds are received (x) at any time after the First Lien Priority Termination Date but prior to the Lenders Second Lien Priority Termination Date or (y) after the Discharge of First Lien Obligations (each capitalized term in the preceding clauses (x) and (y), as defined in the First Lien/Second Lien Intercreditor Agreement), or which Net Cash Proceeds were not applied to prepay the First Lien Obligations as a mandatory prepayment result of the waiver of the obligation to prepay the First Lien Obligations with such Net Cash Proceeds by the First Lien Purchasers, the Issuer shall prepay the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts excess Net Cash Proceeds; provided that no prepayment under this Section 2.9(a) shall be applied) required with respect to Net Cash Proceeds from any Prepayment Event so long as no Default or Event of Default is in existence at the time of receipt of such Net Cash Proceeds and, at the election of the Issuer, to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent extent that states that the Borrower Parties have such proceeds are reinvested such Extraordinary Receipts in the business of the Issuer or any of its Subsidiaries within 365 days (or 366 days in a Borrower Party leap year) following receipt thereof or committed to be reinvested pursuant to a binding contract prior to the expiration of such 365 day (or 366 day in a leap year) period and actually reinvested within 180 days of after the date of receipt such binding contract. Any such prepayment shall be applied in accordance with clause (d) of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If this Section and shall be subject to the extent payment of the Prepayment Premium pursuant to clause (e) of this Section.
(b) Promptly (but in any event within five (5) Business Days) upon receipt by the Issuer or any of its Subsidiaries of Net Cash Proceeds from any issuance of Indebtedness by the Issuer or any of its Subsidiaries (other than any Indebtedness that is not prohibited to be issued or incurred hereunder), in each case, which Net Cash Proceeds are received (x) at any time after the First Lien Priority Termination Date but prior to the Second Lien Priority Termination Date or (y) after the Discharge of First Lien Obligations (each capitalized term in the preceding clauses (x) and (y), as defined in the First Lien/Second Lien Intercreditor Agreement), or which Net Cash Proceeds were not applied to prepay the First Lien Obligations as a result of the waiver of the obligation to prepay the First Lien Obligations with such Extraordinary Receipts are not fully reinvested during Net Cash Proceeds by the Extraordinary Receipts Reinvestment PeriodFirst Lien Purchasers, the Issuer shall prepay the Obligations in an amount equal to all such remaining Extraordinary Receipts is required to Net Cash Proceeds. Any such prepayment shall be applied to prepay the Obligations in accordance with clause (d) of this Section 2.6(b) immediately upon and shall be subject to the expiration payment of the Extraordinary Receipts Reinvestment PeriodPrepayment Premium pursuant to clause (e) of this Section.
(vc) On Commencing with the date that is Fiscal Year ending December 31, 2017, no later than ten (10) Business Days days after the earlier of (A) the date on which the quarterly unaudited Issuer’s annual audited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) such Fiscal Year are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”5.1(a), (i) to the Borrower Parties extent that the Consolidated Total Net Leverage Ratio as of the last day of such Fiscal Year is greater than or equal to 3.50:1.00, the Issuer shall make a mandatory prepayment of prepay the Obligations in an amount equal to fifty percent (x) 50%) % of Excess Cash Flow for such fiscal quarter Fiscal Year minus (y) the aggregate amount of all voluntary prepayments of the Notes and the First Lien Notes made during such Fiscal Year, and (ii) to the extent that the Consolidated Total Net Leverage Ratio as of the last day of such Fiscal Year is less than 3.50:1.00, the Issuer shall prepay the Obligations in an amount equal to 0% of Excess Cash Flow for such Fiscal Year; provided that no Excess Cash Flow prepayment shall be required hereunder other than, (x) at any time after the First Lien Priority Termination Date but prior to the Second Lien Priority Termination Date or (y) after the Discharge of First Lien Obligations (each capitalized term in the preceding clauses (x) and (y), as defined in the First Lien/Second Lien Intercreditor Agreement). Any such prepayment shall be applied in accordance with Section 2.6(b)clause (d) of this Section. Each Any such prepayment shall be accompanied by a certificate signed by an Authorized Signatory a Responsible Officer of the Borrower Parties Issuer, certifying in reasonable detail the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative AgentRequired Purchasers.
(vid) Any payments due under prepayments made by the Issuer pursuant to clause (a), (b) or (c) of this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans or pursuant to this Section 2.6(c2.8(a) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) follows: to the contraryoutstanding principal balance of the Notes, each Lender until the same shall be permitted have been paid in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant full, pro rata to the terms hereof, other than mandatory prepayments required under clause (v) Purchasers based on their Pro Rata Shares of this Section 2.6(c)the Notes.
(viie) The Borrower shall give prior written notice of In connection with any prepayment required under this Section 2.6(c) to made by the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required Issuer pursuant to clause (va) aboveor (b) of this Section, deliver the Issuer shall pay the applicable Prepayment Premium with respect to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be so prepaid. Notwithstanding anything In connection with any prepayment made by the Issuer pursuant to clause (a), (b) or (c) of this Section, the Issuer shall pay any amounts due under Section 2.16 with respect to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderprincipal amount so prepaid.
Appears in 1 contract
Sources: Second Lien Note Purchase Agreement (BioScrip, Inc.)
Mandatory Prepayments. (a) If any Borrower or any of their Subsidiaries Disposes of any property or assets (other than inventory in the ordinary course of business), the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (e) and (f) below); provided, however, that so long as no Default or Event of Default exists, (i) [Reserved].
the Borrowers and their Subsidiaries may receive up to $10,000,000 in the aggregate of such Net Cash Proceeds in any Fiscal Year without making the prepayment described in this Section 5.3(a), and (ii) In the event that, after the Agreement Date, any Borrower Party or Subsidiary may reinvest all or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) portion of the Net Cash Proceeds received by such Person from any Borrower such Disposition in fixed capital or operating assets, including real property (which reinvested amount shall not count against the $10,000,000 threshold set forth in clause (i) above), so long as (A) if any of the property or assets Disposed of constitute Collateral, the reinvestment must be in fixed capital or operating investments that also constitute Collateral and the Administrative Agent must have a perfected Lien in such assets, (B) within 180 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (C) if a definitive agreement to so reinvest has been executed within such 180-day period, then such reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be, upon the conclusion of the applicable 180-day period, immediately applied to the prepayment of the Loans as set forth in this Section 5.3(a).
(b) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 9.2 (including, without limitation, Section 9.2(h))), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the receipt thereof by any Loan Party or such Subsidiary from (such incurrence prepayments to be applied as set forth in clauses (e) and (f) below).
(c) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, or receipt by any Loan Party or Loan Parties of any other Extraordinary Receipt, which in each case results in the realization by such Person or Persons of Net Cash Proceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall be paid within one prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (13) Business Day Days after the date of receipt of the proceeds thereof by such Borrower Party or such Subsidiary (such prepayments to the Lenders be applied as a mandatory prepayment of the Obligations set forth in accordance clauses (e) and (f) below); provided that with Section 2.6(b).
(iii) One hundred percent (100%) of the respect to any Net Cash Proceeds from any saleof an Extraordinary Receipt, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member at the election of the Lender Group or otherwise (other than with respect to the saleBorrowers, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party so long as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an no Event of Default shall have occurred and be continuing continuing, such Borrower or would result therefrom, the Borrower Parties such Subsidiary may elect to reinvest (A) utilize any Net Cash Proceeds from constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or property prior to the date casualty event, or (B) reinvest all or any payment thereof would have been required hereunder portion of the intent to reinvest such Net Cash Proceeds in similar assets for the business fixed capital or operating assets, in each case of a Borrower Party clause (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its businessA) and identifies the long-term assets which shall constitute such reinvestment or (B) so long as (x) within 180 days after receipt of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the date Loans as set forth in this Section 5.3(c).
(d) If for any reason the Revolving Facility Usage at any time exceed the Revolving Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans and Letter of Credit Borrowings and/or Cash Collateralize the Letter of Credit Obligations (other than the Letter of Credit Borrowings) in an aggregate amount equal to such excess (such prepayments and/or Cash Collateralization to be applied as set forth in subsection (f) below). If for any reason, the Delayed Draw Term Loan Outstandings at any time exceed the Delayed Draw Term Facility, the Borrowers shall immediately prepay Delayed Draw Term Loans in an aggregate amount equal to such excess (such prepayments to be applied to the remaining principal repayment installments thereof in inverse order of their maturities).
(e) Each prepayment of Loans pursuant to the foregoing provisions of this Section 5.3 (other than subsection (d)) or subsection (g) below shall be applied, first, to the Term Loans (and, if applicable, any Delayed Draw Term Loans, any Incremental Term Loans, the Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), any Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and any other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis, on a ratable basis (or, to the extent agreed by the lenders providing any such other Indebtedness, on a less than ratable basis), in each case subject to any Applicable Intercreditor Agreement), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such sale or receipt prepayment) (it being understood that the portion of insurance proceeds the Net Cash Proceeds allocated to any Closing Date Term Loans, Delayed Draw Term Loans, any Incremental Term Loans, the Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), any Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and any other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis shall not exceed the amount of the Net Cash Proceeds required to be allocated to such Closing Date Term Loans, Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (iito the extent secured by the Collateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) confirm and such other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis pursuant to the terms thereof, in each case, determined by the product of (x) the amount of such Net Cash Proceeds have been deposited into and (y) a Blocked Accountfraction, which Net Cash Proceeds when so deposited (A) shall constitute Collateralthe numerator of which is the outstanding principal amount of such Closing Date Term Loans, securing Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (to the payment of extent secured by the Obligations then outstandingCollateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and such other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis and (B) may be withdrawn the denominator of which is the sum of the outstanding principal amount of such Closing Date Term Loans, Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (to the extent secured by the applicable Borrower Party solely Collateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to reinvest in the extent secured by the Collateral on a pari passu basis) and such identified long-term assets other Indebtedness permitted to be incurred hereunder that are useful in is secured by the business Collateral on a pari passu basis (and the remaining amount, if any, of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) allocated to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations Loans in accordance with Section 2.6(bthe terms hereof)) immediately upon and second, to the expiration Revolving Credit Facility (without permanent reduction of the Net Cash Proceeds Reinvestment Period.
(ivRevolving Credit Commitments) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in subsection (f) of this Section 2.10 and 5.3. Subject to Section 2.9, such prepayments shall be subject paid to the Lenders pro rata in accordance with Section 5.4. For the avoidance of doubt, the proceeds of any applicable prepayment premiums set forth herein Indebtedness that is not prohibited to be incurred hereunder and is incurred for the purpose of refinancing other Indebtedness in the other Loan Documents. Within the parameters a manner not prohibited hereunder shall be allocated solely to refinance such then-existing Indebtedness being refinanced.
(f) Prepayments of the applications set forth above, prepayments of the Term Loans Revolving Credit Facility made pursuant to this Section 2.6(c5.3 shall be applied, first, ratably to the Letter of Credit Borrowings, second, ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining Letter of Credit Obligations; and the amount remaining, if any, after the prepayment in full of all Letter of Credit Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining Letter of Credit Obligations in full may be retained by the Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Credit Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case), second, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such prepayment) and third, to Cash Collateralize the remaining Letter of Credit Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied first (without any further action by or notice to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the or from any Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the any other Loan Documents. Notwithstanding anything contained in this Section 2.6(cParty) to reimburse the contraryIssuing Lender or the Revolving Credit Lenders, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)as applicable.
(viig) The Borrower shall give prior written notice Upon the receipt of any prepayment required under this Section 2.6(c) to Cure Amount, the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by Borrowers shall prepay an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the aggregate principal amount of Loans equal to 100% of the Term Loans Cure Amount on or prior to the Cure Expiration Date (such prepayments to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderapplied as set forth in clauses (e) and (f) above).
Appears in 1 contract
Sources: Fifth Amendment to Third Amended and Restated Credit Agreement (Construction Partners, Inc.)
Mandatory Prepayments. (a) If any Borrower or any of their Subsidiaries Disposes of any property or assets (other than inventory in the ordinary course of business), the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (e) and (f) below); provided, however, that so long as no Default or Event of Default exists, (i) [Reserved].
the Borrowers and their Subsidiaries may receive up to $10,000,000 in the aggregate of such Net Cash Proceeds in any Fiscal Year without making the prepayment described in this Section 5.3(a), and (ii) In the event that, after the Agreement Date, any Borrower Party or Subsidiary may reinvest all or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) portion of the Net Cash Proceeds received by such Person from any Borrower such Disposition in fixed capital or operating assets, including real property (which reinvested amount shall not count against the $10,000,000 threshold set forth in clause (i) above), so long as (A) if any of the property or assets Disposed of constitute Collateral, the reinvestment must be in fixed capital or operating investments that also constitute Collateral and the Administrative Agent must have a perfected Lien in such assets, (B) within 180 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (C) if a definitive agreement to so reinvest has been executed within such 180-day period, then such reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be, upon the conclusion of the applicable 180-day period, immediately applied to the prepayment of the Loans as set forth in this Section 5.3(a).
(b) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 9.2 (including, without limitation, Section 9.2(h))), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the receipt thereof by any Loan Party or such Subsidiary from (such incurrence prepayments to be applied as set forth in clauses (e) and (f) below).
(c) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, or receipt by any Loan Party or Loan Parties of any other Extraordinary Receipt, which in each case results in the realization by such Person or Persons of Net Cash Proceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall be paid within one prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (13) Business Day Days after the date of receipt of the proceeds thereof by such Borrower Party or such Subsidiary (such prepayments to the Lenders be applied as a mandatory prepayment of the Obligations set forth in accordance clauses (e) and (f) below); provided that with Section 2.6(b).
(iii) One hundred percent (100%) of the respect to any Net Cash Proceeds from any saleof an Extraordinary Receipt, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member at the election of the Lender Group or otherwise (other than with respect to the saleBorrowers, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party so long as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an no Event of Default shall have occurred and be continuing continuing, such Borrower or would result therefrom, the Borrower Parties such Subsidiary may elect to reinvest (A) utilize any Net Cash Proceeds from constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or property prior to the date casualty event, or (B) reinvest all or any payment thereof would have been required hereunder portion of the intent to reinvest such Net Cash Proceeds in similar assets for the business fixed capital or operating assets, in each case of a Borrower Party clause (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its businessA) and identifies the long-term assets which shall constitute such reinvestment or (B) so long as (x) within 180 days of the date of such sale or after receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds Proceeds, such repair, rebuilding or reinvestment shall have been deposited consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into a Blocked Account, which of such definitive agreement; and provided further that any Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal not subject to such Net Cash Proceeds definitive agreement or so reinvested shall be applied) immediately applied to the prepayment of the Obligations Loans as set forth above in this Section 2.6(b5.3(c).
(d) If for any reason the Revolving Facility Usage at any time exceed the Revolving Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans and Letter of Credit Borrowings and/or Cash Collateralize the Letter of Credit Obligations (bother than the Letter of Credit Borrowings) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an aggregate amount equal to such remaining Net excess (such prepayments and/or Cash Proceeds is required Collateralization to be applied as set forth in subsection (f) below). If for any reason, the Delayed Draw Term Loan Outstandings at any time exceed the Delayed Draw Term Facility, the Borrowers shall immediately prepay Delayed Draw Term Loans in an aggregate amount equal to such excess (such prepayments to be applied to prepay the Obligations remaining principal repayment installments thereof in accordance with Section 2.6(b) immediately upon the expiration inverse order of the Net Cash Proceeds Reinvestment Periodtheir maturities).
(ive) One hundred percent (100%) Each prepayment of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties Loans pursuant to the Lenders as a mandatory prepayment foregoing provisions of the Obligations in accordance with this Section 2.6(b5.3 (other than subsection (d). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or subsection (dg) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts below shall be applied) , first, to the prepayment of the Obligations as set forth above in Section 2.6(b) Term Loans (and, if applicable, any Delayed Draw Term Loans and (b) deliver Incremental Term Loans on a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”ratable basis). If , and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such Extraordinary Receipts are not fully reinvested during prepayment) and second, to the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration Revolving Credit Facility (without permanent reduction of the Extraordinary Receipts Reinvestment Period.
(vRevolving Credit Commitments) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in subsection (f) of this Section 2.10 and 5.3. Subject to Section 2.9, such prepayments shall be subject paid to any applicable prepayment premiums set forth herein and the Lenders pro rata in the other Loan Documents. Within the parameters accordance with Section 5.4.
(f) Prepayments of the applications set forth above, prepayments of the Term Loans Revolving Credit Facility made pursuant to this Section 2.6(c5.3 shall be applied, first, ratably to the Letter of Credit Borrowings, second, ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining Letter of Credit Obligations; and the amount remaining, if any, after the prepayment in full of all Letter of Credit Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining Letter of Credit Obligations in full may be retained by the Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Credit Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case), second, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such prepayment) and third, to Cash Collateralize the remaining Letter of Credit Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied first (without any further action by or notice to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the or from any Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the any other Loan Documents. Notwithstanding anything contained in this Section 2.6(cParty) to reimburse the contraryIssuing Lender or the Revolving Credit Lenders, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)as applicable.
(viig) The Borrower shall give prior written notice Upon the receipt of any prepayment required under this Section 2.6(c) to Cure Amount, the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by Borrowers shall prepay an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the aggregate principal amount of Loans equal to 100% of the Term Loans Cure Amount on or prior to the Cure Expiration Date (such prepayments to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderapplied as set forth in clauses (e) and (f) above).
Appears in 1 contract
Mandatory Prepayments. In accordance with and subject to the terms of the Accounts Agreement the following mandatory prepayments, in whole or in part, may occur without premium, penalty or break funding costs:
(i) [Reserved].
(ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by of any Cash Grant Proceeds, such Cash Grant Proceeds shall be deposited in the Borrower Parties to Prepayment Account for application in accordance with the Lenders Accounts Agreement as a mandatory prepayment (to the extent of such proceeds) of the Obligations Advance Amount, together with accrued interest thereon. Nothing in this Section 2.04(b) shall be deemed to limit the obligation of the Company to deposit (or cause to be deposited) in the Prepayment Account the Cash Grant Proceeds;
(ii) on each Funding Date, with respect to any Project Document Claim (other than in respect of such a claim against Ormat or any Related Party thereof), the Net Available Amount of such Project Document Claim shall be applied by in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event Accounts Agreement as a mandatory prepayment (to the extent of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (dsuch proceeds) of the definition thereofAdvance Amount, so long as together with accrued interest thereon;
(iii) on each Funding Date, with respect to any Event of Loss, the Borrower Parties (a)(i) notify the Administrative Agent in writing amount of Loss Proceeds from such Event of Loss that are required to be deposited on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts Funding Date in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely Prepayment Account pursuant to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b3.7(a) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds Accounts Agreement shall be applied as a mandatory prepayment (the “Extraordinary Receipts Reinvestment Period”). If and to the extent of such Extraordinary Receipts proceeds) of the Advance Amount, together with accrued interest thereon. Nothing in this Section 2.04(b) shall be deemed to limit the obligation of the Company to deposit (or cause to be deposited) in the Proceeds Account the Loss Proceeds in respect of any Event of Loss;
(iv) on each Funding Date occurring after Final Acceptance, with respect to any sale, transfer or other disposition of any assets or property (other than any sale of capacity, energy, ancillary services or other services in the ordinary course of business (herein, the “Disposition”), the amount of the proceeds of such Disposition that are required to be deposited on such Funding Date in the Prepayment Account pursuant to Section 3.5(c) of the Accounts Agreement shall be applied by the Company to the mandatory prepayment (to the extent of such proceeds) of the Advance Amount, together with accrued interest thereon (without limiting the obligation of the Company to obtain the consent of Ormat to any Disposition not fully reinvested during the Extraordinary Receipts Reinvestment Periodotherwise permitted hereunder);
(v) upon any Change of Control after Final Acceptance, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration Advance Amount as of the Extraordinary Receipts Reinvestment Period.date of such Change of Control; and
(vvi) On as soon as may be accomplished by the date that is ten (10) Business Days Depositary under the Accounts Agreement after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30each Funding Date, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) the amount of Excess Cash Flow for such fiscal quarter funds deposited in accordance with the Prepayment Account pursuant to Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory 3.01 of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest Accounts Agreement on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) such Funding Date shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant (to the terms hereof, other than mandatory prepayments required under clause (vextent of such proceeds) of this Section 2.6(c)the Advance Amount, together with accrued interest thereon.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(ii) In So long as any Term Loans are outstanding, if, subsequent to the event that, after the Agreement Closing Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Credit Party or any of its Subsidiaries shall issue any Capital Stock (other than to any Credit Party or any of its wholly owned Subsidiaries) (it being understood that the issuance of debt securities convertible into, or exchangeable or exercisable for, Capital Stock shall be paid governed by subsection 4.4(b)(ii) below), 50% of the Net Proceeds thereof shall be applied within five (5) Business Days of receipt thereof by toward the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations Term Loans in accordance with Section 2.6(b). Notwithstanding subsection 4.4(f) below; provided, however, that the foregoing, unless an Event of Default foregoing shall have occurred not apply to employee benefit and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent stock option plans and Capital Stock issued in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and connection with Permitted Acquisitions.
(ii) confirm If, subsequent to the Closing Date, any Credit Party or any of its Subsidiaries shall incur or permit the incurrence of any Indebtedness (including pursuant to debt securities which are convertible into, or exchangeable or exercisable for, Capital Stock but excluding any Indebtedness permitted by subsection 8.1 other than subsection 8.1(g)), 100% of the Net Proceeds thereof shall be applied within five Business Days of receipt thereof toward the prepayment of the Term Loans in accordance with subsection 4.4(f) below.
(iii) If, subsequent to the Closing Date, any Credit Party or any of its Subsidiaries shall receive Net Proceeds from any Asset Sale, 100% of such Net Proceeds shall be applied within five Business Days of receipt thereof toward the prepayment of the Term Loans in accordance with subsection 4.4(f) below; provided that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, Net Proceeds need not be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of Term Loans until the Obligations as set forth above in Section 2.6(b) date that the aggregate amount of Net Proceeds received by any Credit Party or any of its Subsidiaries from any Asset Sales exceeds $5,000,000 (and (b) deliver a certificate from the Borrower has not yet been applied to the Administrative Agent that states that prepayment of Term Loans hereunder).
(iv) If, subsequent to the Borrower Parties have reinvested such Extraordinary Receipts Closing Date, any Credit Party or any of its Subsidiaries shall receive proceeds from insurance recoveries in the respect of any Destruction in excess of $10,000,000 (but in any event excluding proceeds of business interruption insurance) or any proceeds or awards in respect of a Borrower Party within 180 days Taking, 100% of the date Net Proceeds thereof shall be applied within five Business Days of receipt thereof toward the prepayment of such proceeds the Term Loans in accordance with subsection 4.4(f) below (the “Extraordinary Receipts Reinvestment Period”it being agreed that subject to subsection 8.5(l). If and to the extent such Extraordinary Receipts , any amounts paid or payable in connection with a Destruction or Taking which are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is then required to be applied used to pay or prepay Loans, shall be paid to the Obligations in accordance with Section 2.6(b) immediately upon the expiration applicable Credit Party or Subsidiary of the Extraordinary Receipts Reinvestment Perioda Credit Party).
(v) On the date that is ten If (10a) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (year of MCL commencing with the its fiscal quarter year ending June 30on December 31, 2018) are delivered pursuant to Section 7.1(b)2003, or (B) the date on which such financial statements were required to there shall be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter year and (b) at the last day of such fiscal year the Leverage Ratio was equal to or greater than 2.0 : 1.0, 50% of such Excess Cash Flow shall be applied not later than 30 days after the delivery of annual financial statements in accordance with Section 2.6(b). Each such subsection 7.1(a) toward prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(cin accordance with subsection 4.4(f) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)below.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (i) [Intentionally Reserved].
(ii) In Immediately upon the receipt by Borrowers or any of their Subsidiaries of the proceeds of any voluntary or involuntary sale or disposition by Borrowers or any of their Subsidiaries of property or assets (including casualty losses or condemnations but excluding sales or dispositions which qualify as Permitted Dispositions), Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d) in an amount equal to 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions. Nothing contained in this Section 2.4(c)(ii) shall permit Borrowers or any of their Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(iii) Immediately upon the receipt by Borrowers or any of their Subsidiaries of any Extraordinary Receipts, Borrowers shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iv) Immediately upon the issuance or incurrence by Borrowers or any of their Subsidiaries of any Indebtedness (other than Indebtedness permitted under Section 6.1(a), (b), (c), (d), (e) or (f)) or the issuance by Borrowers or any of their Subsidiaries of any shares of Borrowers’ Stock or their Subsidiaries’ Stock (other than in the event that, after the Agreement Date, any Borrower Party that Borrowers or any of Subsidiary of a Borrower Party forms a Subsidiary in accordance with the terms hereof, the issuance by such Subsidiary of Stock to a Borrower or such Subsidiary, as applicable), Borrowers shall incur any Funded Debt other than Funded Debt permitted under prepay the outstanding principal amount of the Obligations in accordance with Section 8.1, one hundred percent (2.4(d) in an amount equal to 100%) % of the Net Cash Proceeds received by any Borrower Party such Person in connection with such issuance or such Subsidiary from such incurrence shall be paid within one (1) Business Day incurrence. The provisions of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with this Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A2.4(c)(iv) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties be implied consent to issue Equity Interests any such issuance or incur Funded Debt except as incurrence otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) and conditions of this Section 2.6(c)Agreement.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Debtor in Possession Credit Agreement (Enesco Group Inc)
Mandatory Prepayments. (ia) [Reserved]Subject to Section 7.1 hereof, when any Loan Party sells or otherwise disposes of any Collateral other than Inventory in the Ordinary Course of Business, Borrowers shall repay the Advances in an amount equal to the net proceeds of such sale (i.e., gross proceeds less the reasonable direct costs of such sales or other dispositions), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied to the Advances in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(iib) In the event thatof any issuance or other incurrence of Indebtedness by any Loan Party or the issuance of any Equity Interests by any Loan Party, the Loan Parties shall, no later than one (1) Business Day after the Agreement Datereceipt by the Loan Parties of (i) the cash proceeds from any such issuance or incurrence of Indebtedness or (ii) the net cash proceeds of any issuance of Equity Interests, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1as applicable, repay the Advances in an amount equal to (x) one hundred percent (100%) of such cash proceeds in the Net Cash Proceeds received by any Borrower Party or such Subsidiary from case of such incurrence shall be paid within one (1) Business Day or issuance of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) Indebtedness and (iiy) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter net cash proceeds in the case of an issuance of Equity Interests. Such repayments will be applied in the same manner as set forth in Section 2.20(b) hereof.
(c) All proceeds received by Borrowers or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Borrowers, or (ii) as a result of any taking or condemnation of any assets or property shall be applied in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent6.6 hereof.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Ampco Pittsburgh Corp)
Mandatory Prepayments. (i) [Reserved]Subject to clause (iii), upon the sale, transfer or other disposition of any assets (or group of related assets) by the Company or any Subsidiary outside of the ordinary course of its business, the Company shall, within one Business Day of the Company's or such Subsidiary's receipt of the proceeds thereof, prepay the outstanding principal amount of the $9.3 Million Closing Date Loan, together with accrued and unpaid interest to the date of such prepayment on the amount so prepaid, in an amount equal to 100% of the Net Cash Proceeds therefrom; provided, however, that any such prepayment shall not be required if the Net Cash Proceeds from such sale, transfer or other disposition, when added to the Net Cash Proceeds arising from all other such transactions in the same fiscal year, is less than $100,000.
(ii) In the event thatSubject to clause (iii), after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of by the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) Company of the Net Cash Proceeds from any salea financing described in Section 2.05(b), transfer(and, assignment if received by the Company on or other dispositionprior to the Additional Commitment Availability Expiry Date, whether voluntary, as a result of any enforcement action by any member to the extent such Net Cash Proceeds exceed the unused Additional Commitment) the Company shall prepay the outstanding principal amount of the Lender Group $9.3 Million Closing Date Loan together with accrued and unpaid interest to the date of such prepayment on the amount so prepaid, in an amount equal to 100% of the Net Cash Proceeds therefrom; provided, however that no such prepayment shall required upon (A) any such issuance and sale of equity securities pursuant to the transactions contemplated by the Securities Purchase Agreement and the other documents entered into in connection therewith, or (ii) any such issuance and sale of equity securities of the Company pursuant to a stock option plan or restricted stock purchase plan approved by the Compensation Committee of the Company's Board of Directors, including the approval of the members of the Compensation Committee elected or otherwise designated by Durus.
(other than with respect iii) Notwithstanding anything therein to the salecontrary, transfer or disposition of assets permitted the aggregate principal amount required to be prepaid under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect limited to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment aggregate outstanding principal amount of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment PeriodAdditional Loans.
(iv) One hundred percent (100%) of The Company shall give the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Lenders at least ten Business Days prior written notice of receipt thereof by any event that would cause the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required Loans to be applied to prepay the Obligations in accordance with prepaid under this Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period2.07(b).
(v) On the date that is ten (10) Business Days after the earlier The provisions of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c2.07(b) and Section 2.05(b) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall not be deemed to allow the Borrower Parties be implied consent to issue Equity Interests any such sale, transfer or incur Funded Debt except as other disposition or such issuance, sale or incurrence otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) and conditions of this Section 2.6(c)Agreement.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Loan Agreement (Aksys LTD)
Mandatory Prepayments. (ia) [Reserved].
No later than the third Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt Asset Sales permitted under Section 8.1Sections 6.05(b)(i) or (b)(ii), one hundred percent (the Borrower shall apply 100%) % of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party with respect thereto to the Lenders as a mandatory prepayment of the Obligations make prepayments in accordance with Section 2.6(b2.13(d).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale; provided that, transfer, assignment or other disposition, whether voluntary, so long as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an no Event of Default shall have occurred and be continuing or would result therefromcontinuing, no prepayments shall be required from (and the Borrower Parties may elect to reinvest amounts in the preceding sentence shall not include) Net Cash Proceeds from any of such saleAsset Sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as if the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest reinvests such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course like assets, financial assets, or other financial services investment strategies within 365 days of its businessreceipt of such Net Cash Proceeds.
(b) and identifies In the long-term assets which event that the Borrower or any Subsidiary shall constitute such reinvestment within 180 days receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of the date Borrower or any Subsidiary (other than a Fund GP, with respect to the incurrence of such sale Indebtedness by a Fund or a Fund Related Entity, and other than any cash proceeds from the issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the Business Day next following) the receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in or such identified long-term assets that are useful in the business of such Borrower Party and (C) shallSubsidiary, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.13(d).
(c) In the event that the Borrower receives any Specified Equity Contribution permitted pursuant to Section 6.17, the Borrower shall, substantially simultaneously with (and in any event not later than the Business Day next following) the receipt of such Specified Equity Contribution, apply an amount equal to 100% of such Specified Equity Contribution to make prepayments in accordance with Section 2.13(d).
(d) Amounts to be applied in connection with prepayments pursuant to clauses (a) and (c) of this Section 2.13 shall (i) be applied) applied to the prepayment of the Obligations as set forth above in Section 2.6(bTerm Loans and the Other Term Loans, (ii) be allocated pro rata between the Term Loans and the Other Term Loans and (biii)(A) deliver a certificate from the Borrower with respect to the Administrative Agent that states that Term Loans, be applied, first, to the Borrower Parties have reinvested such Net Cash Proceeds next succeeding four scheduled installments of principal due in the business of a Borrower Party within 180 days respect of the date Term Loans under Section 2.11 in direct order of maturity and, thereafter, pro rata to the remaining scheduled installments of principal due in respect of the Term Loans under Section 2.11 and (B) with respect to the Other Term Loans, be applied pursuant to the applicable Incremental Term Loan Assumption Agreements or, if the applicable Incremental Term Loan Assumption Agreement does not provide for the manner of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and application, pursuant to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Periodpreceding clause (A), an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Periodmutatis mutandis.
(ive) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any The Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on , at the principal amount time of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c2.13, (i) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) not later than 1:00 p.m. New York City time at least three Business Days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date date, the Type of each Loan being prepaid and the principal amount of the Term Loans each Loan (or portion thereof) to be prepaid. Notwithstanding anything All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the contrary herein, failure principal amount to provide such notice hereunder shall not preclude be prepaid to but excluding the Borrower’s ability to make such prepayment hereunderdate of payment.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
Subject to the proviso contained in this subsection (iia), promptly (and in any event, within three (3) In Business Days ) after receipt by the event that, after the Agreement Date, any Borrower Party or any Subsidiary Loan Party of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by of any Asset Sale or Recovery Event, the Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of prepay the Obligations in accordance with Section 2.6(b).
(iii2.12(e) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds Proceeds; provided that the Borrower shall not be applied) required to the prepayment of prepay the Obligations as set forth above with respect to (i) proceeds from the Asset Sales in the ordinary course of business, (ii) proceeds from other Asset Sales permitted under Section 2.6(b7.6 (other than Section 7.6(i)) and (biii) deliver a certificate from proceeds of any sale or disposition by the Borrower to or any Loan Party of any of its assets, or proceeds from casualty insurance policies or eminent domain, condemnation or similar proceedings that in the Administrative Agent that states that the Borrower Parties have case of this clause (iii) are reinvested such Net Cash Proceeds in assets then used or usable in the business of the Borrower and the Loan Parties within one hundred eighty (180) days following receipt thereof or in which the Borrower or such Loan Party has entered into a commitment to reinvest such proceeds within one hundred eighty (180) days following receipt thereof and such proceeds are reinvested in assets or used or usable in the business of the Borrower and the Loan Parties within two hundred seventy (270) days following receipt thereof; provided, further, that if such 180-day period or 270-day period, as applicable, expires without the Borrower or such Loan Party reinvesting all or any portion of such proceeds, promptly (and in any event within 180 days three (3) Business Days) thereof, the Borrower or such Loan Party shall prepay the Obligations in an amount equal the amount not used or all such Net Cash Proceeds. Notwithstanding anything herein to the contrary, any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings that are required to be turned over to “Lessor” (as such term is defined in the Existing Master Lease) or otherwise applied pursuant to Article XI of the Existing Master Lease shall not be subject to this Section 2.12.
(b) No later than the Business Day following the date of such sale receipt by the Borrower or receipt any Loan Party of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”of any issuance of Indebtedness (other than Indebtedness permitted under Section 7.1). If and to , the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to Borrower shall prepay the Obligations in accordance with Section 2.6(b2.12(e) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be appliedNet Cash Proceeds.
(c) to No later than the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of Business Day following the date of receipt by the Borrower or any Loan Party of such proceeds Net Cash Proceeds from the issuance of any Capital Stock (the “Extraordinary Receipts Reinvestment Period”). If and including Capital Stock issued as part of a Specified Equity Contribution, but other than (x) Capital Stock issued by a Subsidiary to the extent such Extraordinary Receipts are not fully reinvested during Borrower or another Subsidiary or (y) Capital Stock issued by Parent to any Equity Investor, Related Party or pursuant to the Extraordinary Receipts Reinvestment Periodstock option plan of Parent), an amount equal to such remaining Extraordinary Receipts is required to be applied to the Borrower shall prepay the Obligations in accordance with Section 2.6(b2.12(e) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent such Net Cash Proceeds.
(d) Within one hundred and twenty (120) days after the end of each Fiscal Year commencing with the Fiscal Year ending June 30, 2014, the Borrower shall prepay the Obligations in an aggregate amount equal to (x) 50%) % of Consolidated Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory Fiscal Year if the Consolidated Leverage Ratio is greater than or equal to 2.00:1.0 as of the Borrower Parties certifying the manner in which end of such Fiscal Year, (y) 25% of Consolidated Excess Cash Flow for such Fiscal Year if the Consolidated Leverage Ratio is less than 2.00:1.0 but greater than or equal to 1.50:1.0 as of the end of such Fiscal Year and (z) 0% of Consolidated Excess Cash Flow for such Fiscal Year if the resulting prepayment were calculatedConsolidated Leverage Ratio is less than 1.50:1.0 as of the end of such Fiscal Year, which certificate shall be in form and substance satisfactory to each case minus the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal aggregate amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, voluntary prepayments of the Term Loans during such Fiscal Year.
(e) Any prepayments made by the Borrower pursuant to this Sections 2.12(a), (b), (c) or (d) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective Pro Rata Shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective Pro Rata Shares of such interest and fees; fourth, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied pro rata to the principal installments of the Term Loans (except with respect to prepayments made pursuant to Section 2.6(c6.2); fifth, to the principal balance of the Swing Line Loans, until the same shall have been paid in full, to the Swingline Lender, sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments and seventh, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses fifth through seventh above, unless a Default or an Event of Default has occurred and is continuing and the Required Revolving Lenders so request.
(f) If at any time the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, as reduced pursuant to Section 2.8 or otherwise, the Borrower 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 shall be applied first to the Swingline Loans to the full extent thereof, second to the Base Rate Advances Loans to the full extent thereof, and then finally to Eurodollar Advances in direct order Loans to the full extent thereof. If after giving effect to prepayment of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow all Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitments, the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in Cash Collateralize its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except reimbursement obligations with respect to prepayments required pursuant all Letters of Credit in an amount equal to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date excess plus any accrued and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderunpaid fees thereon.
Appears in 1 contract
Mandatory Prepayments. (ia) [Reserved].
(ii) In the event that, after the Agreement Date, If any Borrower Party or Indebtedness shall be incurred by any Subsidiary of a Borrower Party shall incur any Funded Debt Group Member other than Funded Debt as permitted under Section 8.17.2, one hundred percent (an amount equal to 100%) % of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from thereof shall be applied on the date of such incurrence shall be paid within one (1) Business Day of receipt of toward the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)Term Loans.
(iiib) One hundred percent (100%) Within ten Business Days after the receipt by the Borrower or any other Group Member of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect Asset Sale pursuant to the saleGeneral Dispositions Basket, transfer or disposition of assets permitted Section 7.5(k), Section 7.5(n)(other than in connection with Investments under clauses (i) and (ii) of Section 8.7(b7.7(w)), Section 7.11 or casualty or condemnation loss any Recovery Event from and after the Closing Date then, Pagaya US shall repay Term Loans in an aggregate principal amount equal to 100% of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest such Net Cash Proceeds from any (such saleprepayments to be applied as set forth in clause (d) below); provided, transfer, assignment or other disposition that the Borrower or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent Group Member shall be permitted to reinvest such Net Cash Proceeds in similar assets used or useful for the Borrower’s or any Group Member’s business of a Borrower Party permitted by Section 7.16 no later than (which assets shall be consistent with the assets utilized by i) twelve months following such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale receipt or receipt of insurance proceeds and (ii) confirm that if it shall have entered into a legally binding commitment to so reinvest such Net Cash Proceeds have been deposited into a Blocked Account, which within twelve months following receipt of such Net Cash Proceeds when so deposited (A) shall constitute CollateralProceeds, securing six months after the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business end of such Borrower Party and (C) shalltwelve month period, upon and, for the Administrative Agent’s request following the occurrence and during the continuance avoidance of an Event of Defaultdoubt, no mandatory prepayment shall be applied (or an amount equal to required from such Net Cash Proceeds until the expiration of such period, at which time a mandatory prepayment shall be applied) to the prepayment of the Obligations as set forth above required in Section 2.6(b) and accordance with this clause (b) deliver a certificate from the Borrower with respect to the Administrative Agent that states excess of the amount of such Net Cash Proceeds received over the amount so reinvested; provided further, to the extent that the Borrower Parties or such other Group Member shall not have (i) so reinvested 100% of such Net Cash Proceeds by not later than twelve months after the receipt thereof or (ii) entered into a legally binding commitment to so reinvest such Net Cash Proceeds within twelve months and so reinvested such Net Cash Proceeds in no later than six months after the business of a Borrower Party within 180 days of the date end of such sale or receipt of insurance proceeds (twelve month period, the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to Borrower shall use any such remaining Net Cash Proceeds to repay Term Loans on such date; and provided, further, Pagaya US shall not be required to repay Term Loans pursuant to this clause (b) unless and until the aggregate amount of Net Cash Proceeds Pagaya US is required to be applied use to prepay the Obligations in accordance with Section 2.6(bTerm Loans pursuant to this clause (b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of is equal to or greater than $2,500,000 in the aggregate 10,500,000 in any fiscal year received by any Borrower Party or any of its Subsidiaries (and at such time, Pagaya US shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations Term Loans in an amount equal to fifty percent (50%) of Excess all such Net Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(cProceeds so received).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].
(iia) In connection with any issuance of debt or equity securities, or incurrence of debt for borrowed money (except for any such debt having a tenor of no longer than 120 days), by the event that, after the Agreement Date, any Borrower Party Company or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent its Subsidiaries generating Net Proceeds therefrom in excess of $10,000,000 (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)“Threshold Amount”), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party the Company shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of prepay the Obligations Loans in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be appliedwithin 30 days after receipt thereof. Notwithstanding the foregoing in this Section 2.06(a) to the contrary, (i) no such prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower shall be required with respect to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party the Company or any of its Subsidiaries from the issuance by the Company or any of its Subsidiaries of tax exempt bonds; and (ii) all Net Proceeds from any sale or issuance of debt or equity securities, or incurrence of debt for borrowed money by the Company or any of its Table of Contents subsidiaries consummated in connection with the Recapitalization Transaction shall be paid within five (5) Business Days of receipt thereof by used to prepay the Borrower Parties Loans without regard to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause Threshold Amount (a), (b) or (d) of the definition thereof, it being understood that so long as the Borrower Parties (a)(i) notify Net Proceeds from the Administrative Agent issuance and sale of senior subordinated notes by the Company in writing on or prior connection with the Recapitalization Transaction are held in escrow, such proceeds do not have to be used to prepay the Loans hereunder, provided that upon the release of such Net Proceeds from such escrow, all such Net Proceeds shall be used to prepay the Loans without regard to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and Threshold Amount).
(b) deliver a certificate from In connection with any Asset Sale by the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts Company or any of its Restricted Subsidiaries generating Net Proceeds in the business excess of a Borrower Party within 180 days of the date of receipt of such proceeds $50,000,000 (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Periodeach, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment DateAsset Disposition”), the Borrower Parties Company shall make a mandatory prepayment of prepay the Obligations Loans in an amount equal to fifty percent (50%) the Net Proceeds of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each Asset Disposition within 30 days after receipt thereof; provided, however, no such prepayment shall be accompanied by required in connection with an Asset Disposition that constitutes a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative AgentSale-Leaseback Transaction not requiring compliance with Sections 8.02(b) or 8.02(c).
(vic) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount prepayment of the Loans being prepaid and applied in the manner set forth in required by this Section 2.10 and 2.06 shall not be subject to the minimum amount requirements of Section 2.05(b).
(d) Upon any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary2.06, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to shall promptly notify the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount Lenders of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. In accordance with Section 2.01(f)(iii), (iA) [Reserved].
(iiduring a Sweep Event, the Borrower shall apply Actual Net Cash Flow remaining after making the transfers required pursuant to Sections 3.3(d)(i) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%through 3.3(d)(vi) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party CADA to the Lenders as a mandatory prepayment of the Obligations Loans in accordance with Section 2.6(b).
(iii) One hundred percent (100%3.3(d)(vii) of the Net Cash Proceeds from CADA until such time the Sweep Event is remedied, provided that in the event that a Sweep Event is caused by the occurrence of a Bankruptcy Event of SolarCity, such Sweep Event cannot be remedied and such Sweep Event shall continue until the Discharge Date; (B) if any saleLoan Party or any Subject Fund (x) incurs or issues any Debt after the Closing Date that is not permitted to be incurred pursuant to Section 7.02 or (y) issues any capital stock, transferthen, assignment in each case, the Borrower shall prepay the Loans, in an aggregate principal amount equal to 100% of all net cash proceeds therefrom received or other dispositionentitled to be received by, whether voluntaryor distributable to, as a result of any enforcement action by Loan Party or any member of the Lender Group Affiliate thereof, to, on or otherwise (other than with respect prior to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within date which is two (2) Business Days of after the receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Loan Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and net proceeds; (C) if, as of any date a Borrowing Base Certificate is delivered (including any Borrowing Base Certificate delivered pursuant to Section 2.12), the Outstanding Principal exceeds the Available Borrowing Base, Borrower shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days after the date of such Borrowing Base Certificate, prepay the Loans in an amount sufficient to reduce the Outstanding Principal to an amount not greater than the Available Borrowing Base as calculated in such Borrowing Base Certificate; (D) upon receipt thereof by of any Equity Contributions under Article XI, the Borrower Parties shall cause the proceeds of such Equity Contribution to be applied as a prepayment of outstanding principal of the Loans in an amount equal to the Lenders as a mandatory prepayment amount of the Obligations such Equity Contribution; (E) upon any refinancing of Net Cash Flows of one or more Subject Funds in accordance with Section 2.6(b2.10(a). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of shall prepay the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent Loans in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to the net cash proceeds of such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) refinancing; and (bF) deliver if any Subject Fund becomes subject to a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party Trigger Event, then within 180 days of the date of receipt of such proceeds five (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (105) Business Days after the earlier Borrower receives notice from the Administrative Agent or otherwise has actual knowledge of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)Trigger Event, the Borrower Parties shall make a mandatory prepayment of prepay the Obligations Loans in an amount equal sufficient to fifty percent (50%) of Excess Cash Flow for cause such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by Subject Fund to become a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans Released Fund pursuant to this Section 2.6(cSections 2.10(b) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(cc).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Solarcity Corp)
Mandatory Prepayments. (i) [Reserved].
(ii) In the event thatWhen any Loan Party sells or otherwise disposes of any Collateral, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Inventory in the ordinary course of business (which shall be governed by the provisions of Section 8.14.15(h)) or consummates an issuance of equity, Loan Parties shall repay the Advances in an amount equal to the net proceeds of such sale or issuance (i.e., gross proceeds less the direct costs of such sales, dispositions or issuances), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or issuance otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied (y) first, to the Revolving Advances in such order as Agent may determine, subject to Borrowers' ability to reborrow Revolving Advances in accordance with the terms hereof and (z) second, as cash collateral in an amount of one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day outstanding Letters of receipt of the proceeds thereof by such Borrower Party Credit Obligations pursuant to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)arrangements satisfactory to Agent.
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless and until an Event of Default shall have has occurred and be continuing or would result therefromis continuing, the Borrower Loan Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment sell or otherwise dispose of Collateral (other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party than Inventory in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and not to exceed (iix) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 500,000 in the aggregate in any fiscal year received by plus (y) $250,000 in the aggregate in any Borrower Party fiscal year with respect to obsolete, worn-out or any unnecessary Equipment in the ordinary course of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties business, and retain such net proceeds solely to the Lenders as acquire replacement Collateral without making a mandatory prepayment hereunder so long as (a) the failure to apply such net proceeds to the Obligations shall not result in an obligation on the part of the Obligations in accordance with Section 2.6(b). Notwithstanding applicable Loan Party to apply such net proceeds to the foregoingSenior Secured Debt, unless an Event of Default shall have occurred and be continuing Subordinated Debt or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), any other Indebtedness; (b) the fair market value of the acquired Collateral is equal to or greater than the fair market value of the Collateral which was sold, (c) the acquired Collateral is purchased by the applicable Loan Party within forty-five (45) days of the sale of the Collateral, (d) of the definition thereof, so long acquired Collateral shall be subject to Agent's first priority security interest created hereunder and (e) until such time as the Borrower Parties proceeds are used to acquire such replacement Collateral, at the Agent's option, either (a)(ii) notify such proceeds shall be held by Agent as cash collateral for the Administrative Obligations pursuant to terms acceptable to Agent in writing on its sole discretion or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into proceeds shall be applied as a Blocked Accountrepayment of Revolving Advances and a reserve against loan availability under Section 2.1(a) in the amount of such repayment shall be established. Such cash collateral or loan availability reserve, which Extraordinary Receipts when so deposited (A) as the case may be, shall constitute Collateral, securing be released by Agent only in connection with the payment making of the Obligations then outstanding, (B) may a Revolving Advance to be withdrawn used by the applicable Borrower Party Borrowers solely to reinvest in such identified long-term assets that are useful in for the business purposes of such Borrower Party and (C) shall, upon funding the Administrative Agent’s request following the occurrence and during the continuance acquisition of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) replacement Collateral pursuant to the terms of this Section 2.13; provided, however, that nothing contained herein shall waive or modify any conditions to the making of Revolving Advances or any other provisions of this Agreement. If a Loan Party fails to meet the conditions set forth above, the Loan Parties hereby authorize Agent and Lenders to apply the proceeds held by Agent as a prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied Advances in the manner set forth above.
(b) Subject to the provisions of Section 4.11, the Agent shall apply the proceeds of any insurance settlements from casualty losses which are received by the Agent to the outstanding Advances in Section 2.10 and shall be such order as Agent may determine, subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant Borrower's ability to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar reborrow Revolving Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to accordance with the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Brown Jordan International Inc)
Mandatory Prepayments. (a) Subject to Section 6.12, if on any date on which a Borrowing Base Certificate is delivered (or is required to be delivered) pursuant to Section 9.2(c), the Aggregate Outstanding RC Extensions of Credit of all Lenders exceed the Borrowing Base, the Borrower shall prepay the Revolving Credit Loans and/or cash collateralize or replace Letters of Credit in an amount equal to the amount of such excess no later than the Business Day immediately following the date of delivery (or requirement for delivery) of such Borrowing Base Certificate.
(b) Subject to Section 6.12, if on any date the Aggregate Outstanding RC Extensions of Credit exceeds the Revolving Credit Commitments, the Borrower shall immediately prepay the Revolving Credit Loans and cash collateralize or replace Letters of Credit in an amount equal to the amount of such excess.
(c) Unless the Required Lenders otherwise agree, the Borrower shall prepay the Loans and reduce the Commitments in an amount equal to (i) [Reserved].
100% of the Net Proceeds of any sale or issuance of debt securities, and 50% of the Net Proceeds of any sale or issuance of any equity securities, in either case by the Borrower or any Subsidiary, whether in a public offering, a private placement or otherwise, and (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) % of the Net Cash Proceeds received by of any Borrower Party sale, lease, assignment, exchange or such Subsidiary from such incurrence shall be paid within one other disposition for cash of any asset or group of assets (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations other than in accordance with Section 2.6(b).
10.5(b) hereof) (iii) One hundred percent (100%) of the Net Cash Proceeds from any saleincluding, transferwithout limitation, assignment or other disposition, whether voluntary, insurance proceeds paid as a result of any enforcement action by destruction, casualty or taking of any member property of the Lender Group Borrower or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)any Subsidiary), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party not made in the ordinary course of its business) and identifies , by the long-term assets which shall constitute such reinvestment within 180 days Borrower or any Subsidiary of the date Borrower, in any such case no later than three Business Days following receipt by the Borrower or such Subsidiary of such sale or receipt of insurance proceeds and proceeds, together with accrued interest to such date on the amount prepaid; provided that no such prepayment shall be required pursuant to subclause (ii) confirm that of this Section 6.5(c) unless the aggregate amount of such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn received by the applicable Borrower Party solely and its Subsidiaries and not previously applied to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as Loans and the reduction of the Commitments pursuant to Section 6.5(c)(ii) is at least $100,000. Amounts prepaid pursuant to this Section 6.5(c) shall be applied first to the Term Loans to the installments of principal thereof in the inverse order of their scheduled maturities, until paid in full, second to the Acquisition Loans to the installments of principal thereof in inverse order of their scheduled maturities and, upon repayment of all then outstanding Acquisition Loans, to the reduction of the then undrawn Acquisition Loan Commitments, and third to the reduction of the Revolving Credit Commitments and the concomitant prepayment of any Revolving Credit Loans and/or cash collateralization of any Letters of Credit; provided, that if such prepayment occurs following the Acquisition Loan Commitment Termination Date, such amount prepaid shall be applied first to the Term Loans and the Acquisition Loans, pro rata to the installments of principal thereof in the inverse order of their scheduled maturities, until paid in full, and second to the reduction of the Revolving Credit Commitments and the concomitant prepayment of any Revolving Credit Loans and/or cash collateralization of any Letters of Credit; provided, further, that, without changing the order of priority of payments outlined above, the amounts prepaid shall be applied first to Base Rate Loans and second to Eurodollar Loans. Amounts so prepaid may not be reborrowed. Nothing in this Section 6.5(c) shall be construed to derogate any restriction or limitation contained in any Loan Document imposed on any transaction of the types described in this Section 6.5(c), including without limitation the restrictions set forth above in Section 2.6(b) Sections 10.2, 10.5 and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period10.6 hereof.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on On or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after before the earlier of (A) the date on which the quarterly unaudited financial statements for any referred to in Section 9.1(a) are required to be delivered in respect of a fiscal quarter (commencing year of the Borrower, beginning with the fiscal quarter year ending on or about June 30, 2018) are delivered pursuant to Section 7.1(b)2000, or (B) and the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)are actually delivered, the Borrower Parties shall make a mandatory prepayment prepay the Loans and permanently reduce the Commitments in the amount of the Obligations in an amount equal to fifty percent (50%) 75% of Excess Cash Flow for the fiscal year covered by such fiscal quarter in accordance financial statements, together with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest to such date on the principal amount of the Loans being prepaid. Amounts prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c6.5(d) shall be applied first to the Term Loans to the installments of principal thereof in the inverse order of their scheduled maturities, until paid in full, second to the Acquisition Loans to the installments of principal thereof in inverse order of their scheduled maturities and, upon repayment of all then outstanding Acquisition Loans, to the reduction of the then undrawn Acquisition Loan Commitments, and third to the reduction of the Revolving Credit Commitments and the prepayment of the Revolving Credit Loans and/or cash collateralization of the Letters of Credit; provided, that if such prepayment occurs following the Acquisition Loan Commitment Termination Date, such amount prepaid shall be applied first to the Term Loans and the Acquisition Loans, pro rata to the installments of principal thereof in the inverse order of their scheduled maturities, until paid in full, and second to the reduction of the Revolving Credit Commitments and the prepayment of the Revolving Credit Loans and/or cash collateralization of the Letters of Credit; provided, further, that, without changing the order of priority of payments outlined above, the amounts prepaid shall be applied first to Base Rate Advances Loans and then second to Eurodollar Advances in direct order of Eurodollar Advance Period maturitiesLoans. Nothing in this Section 2.6(cAmounts so prepaid may not be reborrowed.
(e) shall be deemed to allow Net Proceeds received by the Borrower Parties or any Subsidiary as proceeds of insurance upon any destruction, casualty or taking with respect to issue Equity Interests any property of the Borrower or incur Funded Debt except any Subsidiary need not be applied as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained set forth in this Section 2.6(c6.5(c) to the contraryextent that such Net Proceeds are applied to the repair, each Lender rebuilding or replacement of the property which was the subject of such destruction, casualty or taking within the earlier to occur of (i) 120 days after the receipt of such Net Proceeds and (ii) 180 days after the occurrence of such destruction, casualty or taking. If required by the Administrative Agent, such Net Proceeds shall be permitted held in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant a special collateral account, subject to the terms hereof, other than mandatory prepayments required under clause (v) sole dominion and control of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) the Administrative Agent and in a manner reasonably satisfactory to the Administrative Agent Agent, as far in advance thereof additional Collateral for the Obligations, until such time as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans they are to be prepaid. Notwithstanding anything applied to the contrary hereinsuch repair, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderrebuilding or replacement.
Appears in 1 contract
Sources: Credit Agreement (Denali Inc)
Mandatory Prepayments. (a) The Company shall make a prepayment of the Revolving Loans (applied as set forth in Section 6.3.1) until Paid in Full upon the occurrence of any of the following (each a “Mandatory Prepayment Event”) at the following times and in the following amounts (such applicable amounts being referred to as “Designated Proceeds”) unless an Event of Default or Unmatured Event of Default is then existing, in which case the provisions of this Agreement shall be applicable:
(i) [Reserved]Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any Asset Disposition, in an amount equal to 100% of such Net Cash Proceeds, except as otherwise required by the Prudential Debt Documents (as such documents exist on the date hereof).
(ii) In Concurrently with the event that, after the Agreement Date, receipt by any Borrower Loan Party or of any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received from any issuance of Capital Securities of any Loan Party (excluding (x) any issuance of Capital Securities pursuant to any employee or director option program, benefit plan or compensation program and (y) any issuance by any Borrower Party or such a Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment Company or another Subsidiary), in an amount equal to 100% of the Obligations in accordance with Section 2.6(b)such Net Cash Proceeds.
(iii) One hundred percent (100%) Concurrently with the receipt by any Loan Party of the any Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result issuance of any enforcement action Debt of any Loan Party (excluding Debt permitted by Section 11.1), in an amount equal to 100% of such Net Cash Proceeds.
(iv) Concurrently with the receipt by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss Loan Party of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss Insurance Proceeds the amount of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business excess of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party $250,000 in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and aggregate per calendar year.
(b) deliver a certificate from If on any day the Borrower to Revolving Outstandings plus the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days outstanding amount of the date Swing Line Loan exceeds the Revolving Commitment, the Company shall immediately prepay Revolving Loans and/or Cash Collateralize the outstanding Letters of such sale Credit, or receipt do a combination of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Periodforegoing, in an amount equal sufficient to eliminate such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Periodexcess.
(ivc) One hundred percent (100%) If on any day on which the Revolving Commitment is reduced pursuant to Section 6.1.1 the Revolving Outstandings plus the outstanding amount of the Extraordinary Receipts in excess Swing Line Loan exceeds the Revolving Commitment, the Company shall immediately prepay 28 Revolving Loans or Cash Collateralize the outstanding Letters of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party Credit, or any do a combination of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal sufficient to fifty percent (50%) of Excess Cash Flow for eliminate such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agentexcess.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Cpi Corp)
Mandatory Prepayments. (i) [Reserved].
(ii) In Within 3 Business Days of the event that, after the Agreement Date, date of receipt by any Borrower Loan Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) its Subsidiaries of the Net Cash Proceeds received of any:
(i) voluntary or involuntary sale or disposition by any Borrower Loan Party or such Subsidiary from such incurrence shall be paid within one any of its Subsidiaries of Revolver Priority Collateral (1including casualty losses {including proceeds of insurance in respect thereof) Business Day of receipt or condemnations with respect thereto but excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (i), (j), (k) or (n) of the proceeds thereof by such definition of Permitted Dispositions), (A) U.S. Borrower Party to shall prepay the Lenders as a mandatory prepayment outstanding principal amount of the Obligations in accordance with Section 2.6(b).
(iii2.4(f)(i) One hundred percent (in an amount equal to 100%) % of the such Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action (including condemnation awards and payments in lieu thereof) received by any member U.S. Loan Party or any of the Lender Group its Subsidiaries in connection with such sales or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) dispositions and (iiB) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Canadian Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment prepay the outstanding principal amount of the Obligations in accordance with Section 2.6(b2.4(f)(ii) in an amount equal to 100% of such Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by any Canadian Loan Party or any of its Subsidiaries in connection with such sales or dispositions provided, however, that, so long as (w) no Default or Event of Default shall have occurred and is continuing, (x) U.S. Borrower or Canadian Borrower, as applicable, shall have given Agent prior written notice of Borrower’s intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such sale or disposition or the cost of purchase or construction of other assets useful in the business of such Borrower or its Subsidiaries, (y) the monies are held in a Deposit Account in which Agent has a perfected first-priority security interest (subject to Permitted Liens). Notwithstanding , and (z) such Loan Party or any its Subsidiaries, as applicable, commits to such replacement, purchase or construction within 6 months after the foregoingdate of initial receipt of such monies and completes such replacement, purchase, or construction within 1 year after the initial receipt of such monies, such Loan Party or any of its Subsidiaries shall have the option to apply such monies, in an aggregate amount not to exceed (1) with respect to sales or dispositions (other than casualty losses or condemnations), (aa) $1,000,000 for all such sales or dispositions in any fiscal year, and (bb) $5,000,000 for all such sales or dispositions since the Closing Date, or (2) with respect to casualty losses and condemnations, $10,000,000 for all such casualty losses (including proceeds of insurance in respect thereof) and condemnations in any fiscal year, to the costs of replacement of the assets that are the subject of such sale or disposition or for the purchase or construction of assets useful to the business of any of the Loan Parties unless and to the extent that (aa) such applicable period shall have expired without such replacement, purchase or construction being made or completed or (bb) an Event of Default shall have occurred and be continuing or would result therefromcontinuing, in which ease, any amounts remaining in the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets cash collateral account shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) paid to Agent and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b2.4(f)(i) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.or Section 2.4(f)(ii), as applicable; and
(ivii) One hundred percent business interruption insurance, (100%A) of U.S. Borrower shall prepay the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment outstanding principal amount of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b2.4(f)(i) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to 50% of such Extraordinary Receipts shall be applied) to the prepayment Net Cash Proceeds of the Obligations as set forth above in Section 2.6(b) any business interruption insurance received by any U.S. Loan Party or any of its Subsidiaries and (bB) deliver a certificate from Canadian Borrower shall prepay the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business outstanding principal amount of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b2.4(f)(ii) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%% of such Net Cash Proceeds of any business interruption insurance received by any Canadian Loan Party or any of its Subsidiaries; Nothing contained in this Section 2.4(e) shall permit any Loan Party or any of Excess Cash Flow for such fiscal quarter its Subsidiaries to sell or otherwise dispose of any assets other than in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent6.4.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Senior Revolving Credit Agreement (Bumble Bee Capital Corp.)
Mandatory Prepayments. (a) Unless the Required Lenders shall otherwise agree, if any Capital Stock shall be issued (other than any Capital Stock issued (i) [Reserved].
solely for the purpose of applying the Net Cash Proceeds of such issuance to cure (A) the inaccuracy of any Curable Representation/Warranty in accordance with Section 7.1 (b) or (B) a violation of Section 6.1 or Section 6.3 in accordance with such Section and clause (f) below, or (ii) In to one or more Investor Parties or Investor-Related Parties), or Indebtedness incurred, by the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 6.4), then on the date of such issuance or incurrence, the Loans shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) be prepaid by an amount equal to the amount of the Net Cash Proceeds received of such issuance or incurrence. The provisions of this Section do not constitute a consent to the issuance of any equity securities by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party entity whose equity securities are pledged pursuant to the Lenders as Guarantee and Collateral Agreement, or a mandatory prepayment consent to the incurrence of any Indebtedness by the Obligations in accordance with Section 2.6(b)Borrower or any of its Subsidiaries.
(iiib) One hundred percent (100%) of Unless the Net Cash Proceeds from Required Lenders shall otherwise agree, if on any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, date the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoingreceive Net Cash Proceeds from any Asset Sale or Purchase Price Refund then, unless an Event of Default a Reinvestment Notice shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect delivered to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing respect thereof, on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt by the Borrower or such Subsidiary of such proceeds Net Cash Proceeds, the Loans shall be prepaid by an amount equal to the amount of such Net Cash Proceeds; provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Purchase Price Refunds that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Borrower and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Accounton each Reinvestment Prepayment Date the Loans shall be prepaid, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts the Reinvestment Prepayment Amount with respect to the relevant Asset Sale or Purchase Price Refund.
(c) Unless the Required Lenders shall otherwise agree, if on any date the Borrower or any of its Subsidiaries shall receive net Cash Proceeds from any Recovery Event then, unless the Borrower acts in accordance with the following procedures specified in this Section 2.6(c), the Loans shall be applied) prepaid by an amount equal to the prepayment amount of such Net Cash Proceeds promptly upon the Borrower’s failure to act, or to continue to act, in accordance with such procedures:
(i) within 90 days after the occurrence of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from event that gives rise to the Recovery Event, the Borrower shall deliver to the Administrative Agent a preliminary notice of intent to use the anticipated Net Cash Proceeds from such Recovery Event to rebuild or reinvest in the assets that states were the subject of the Recovery Event;
(ii) upon receipt of such Net Cash Proceeds, the Borrower shall place them in a segregated account subject to a security interest in favor of the Administrative Agent for the benefit of the Lenders, to be used only for such rebuilding or reinvestment;
(iii) within 15 days after receipt of such Net Cash Proceeds, the Borrower shall deliver to the Administrative Agent a Reinvestment Notice in respect thereof;
(iv) within six months after delivery of the Reinvestment Notice, the Borrower shall commence the reinvestment or rebuilding process, provided that the Borrower Parties have reinvested such Extraordinary Receipts has obtained all required Licenses to do so (which the Borrower shall make commercially reasonable efforts to obtain in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”timely manner). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.;
(v) On if the Borrower has not obtained any required Licenses within the six-month period specified in clause (iv) above, then provided that the Borrower at all times is diligently proceeding to obtain all such required Licenses, the Borrower shall have such additional period of time as is reasonably needed to obtain required Licenses and thereafter commence the reinvestment or rebuilding process, but in no event shall such additional period extend later than the date that is ten (10) Business Days after the earlier of (A) six months after the date on which end of the quarterly unaudited financial statements for any fiscal quarter initial six-month period specified in clause (commencing with the fiscal quarter ending June 30, 2018iv) are delivered pursuant to Section 7.1(b), above or (B) the date on which the Administrative Agent in the exercise of reasonable discretion informs the Borrower that the Administrative Agent believes any such financial statements were License is not reasonably capable of being obtained by the Borrower;
(vi) the Borrower shall diligently proceed with and complete the reinvestment or rebuilding process in accordance with the Reinvestment Notice; and
(vii) the Borrower shall provide notice to the Administrative Agent of any material correspondence relating to any required to be delivered Licenses pursuant to Section 7.1(b5.7(h).
(d) The provisions of Sections 2.6(b) and 2.6(c) do not constitute a consent to the consummation of any Disposition not permitted by Section 6.7.
(e) Unless the “Required Lenders shall otherwise agree, if, as of any ECF Prepayment Calculation Date commencing with the first ECF Calculation Date following the expiration of 180 days after the Substantial Consummation Date”), there shall be Excess Cash Flow, then, on the relevant ECF Application Date, the Loans shall be prepaid by an amount equal to 50% of such Excess Cash Flow, provided that, notwithstanding the foregoing, in no event shall the Borrower Parties shall be required to make a mandatory prepayment pursuant to this Section 2.6(e) relating to any ECF Calculation Period if (and to the extent that) such payment would cause the Borrower’s and its Subsidiaries’ (on an aggregate basis) Cash and Cash Equivalents to be less than $10,000,000 as of the Obligations relevant ECF Calculation Date.
(f) Unless the Required Lenders shall otherwise agree, if on any date the Administrative Agent shall determine (absent manifest error) pursuant to Section 6.1 or Section 6.3 (as the case may be) that the amount of capital contributions to the Borrower made to cure a violation of Section 6.1 or Section 6.3 (as applicable) exceeds the amount needed to cure such violation, then the Loans shall be prepaid in an amount equal to fifty percent the lesser of (50%i) the entirety of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory excess amount of the Borrower Parties certifying the manner in which Excess Cash Flow capital contributions and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent(ii) $500,000.
(vig) Any payments due under this Section 2.6(c) All prepayments of the Loans pursuant to Sections 2.5 and 2.6 shall be accompanied by all applied as follows: (i) first, to pay accrued and unpaid interest on on, and expenses in respect of, the Obligations to the extent then due and payable, and (ii) second, to prepay the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 other Obligations (if any) then outstanding (and shall be subject applied to any applicable prepayment premiums set forth herein and the installments of such Loans in the other Loan Documents. Within the parameters inverse order of the applications set forth above, prepayments scheduled maturities of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(csuch installments).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Credit Agreement (NGA Holdco, LLC)
Mandatory Prepayments. Subject to the terms of the Intercreditor Agreement, concurrently with the receipt by Borrower or any of their Subsidiaries of the net proceeds (i) [Reserved].
of the issuance of any Indebtedness for borrowed money (other than Permitted Indebtedness) including any Subordinated Debt, (ii) In of any disposition of assets (other than a disposition of assets permitted under Section 3.7 below), (iii) from any Casualty Event in excess of $500,000, (iv) from the event thatissuance of, after the Agreement Dateor otherwise on account of, any Borrower Party or Stock of any Subsidiary of a Borrower Party shall incur any Funded Debt (other than Funded Debt permitted under Section 8.1equity issuances by a Subsidiary of Borrower to Borrower or a Subsidiary of Borrower), and (v) from any Extraordinary Receipts in excess of $500,000, Borrower shall prepay the Loan in an amount equal to one hundred percent (100%) of such net proceeds, subject to the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence prepayment fee described in Section 1.3(b) below. Nothing in this Section 1.2(f) shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party construed to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from permit or waive any sale, transfer, assignment Default or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties that may elect to reinvest Net Cash Proceeds arise from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss incurrence of any Collateral or such other assets, so long as events described herein and not otherwise permitted under the Borrower Parties (a)(iterms of this Agreement. Notwithstanding anything in this Section 1.2(f) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of contrary, if Borrower notifies the intent Agent that it intends to reinvest such Net Cash Proceeds in similar apply the net proceeds from a Casualty Event (or a portion thereof) to acquire (or replace or rebuild) tangible assets for the business of a Borrower Party (which assets shall to be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful used in the business of Borrower within 360 days after receipt of such Borrower Party and (Cnet proceeds, then no prepayment is required pursuant to this Section 1.2(f) shallin respect of such net proceeds; provided that to the extent of any such net proceeds have not been so applied by the end of such 360-day period, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or a prepayment is required at such time in an amount equal to such Net Cash Proceeds shall be net proceeds that have not been so applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
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Mandatory Prepayments. (ia) [Reserved].
Subject to Section 2.12(j), unless the Required Prepayment Lenders shall otherwise agree, if any Capital Stock shall be issued (iiother than Capital Stock issued to any Permitted Investor or ASOT Group Member), or Indebtedness incurred, by any ASOT Group Member (excluding any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement (other than Sections 7.2(l) In the event thatand 7.2(m))), then not later than one Business Day after the Agreement Datedate of such issuance or incurrence, any Borrower Party or any Subsidiary the Term Loans, the Revolving Credit Loans and the Swing Line Loans shall be prepaid, and/or the outstanding Letters of a Borrower Party Credit shall incur any Funded Debt other than Funded Debt permitted under Section 8.1be cash collateralized, one hundred percent (100%) by an amount equal to the Applicable Prepayment Percentage of the amount of the Net Cash Proceeds received by any Borrower Party of such issuance or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations set forth in accordance with Section 2.6(b2.12(h).
(iii) One hundred percent (100%) of , provided that, the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is Qualified Construction Refinancing required to be applied to prepay the Obligations Loans and/or cash collateralize the outstanding Letters of Credit pursuant to this Section 2.12(a) shall be applied as set forth in Section 2.12(i). The provisions of this Section 2.12 do not constitute a consent to the issuance of any equity securities by any entity whose equity securities are pledged pursuant to the Guarantee and Collateral Agreement, or a consent to the incurrence of any Indebtedness by any ASOT Group Member otherwise prohibited under this Agreement.
(b) Subject to Section 2.12(j), unless the Required Prepayment Lenders shall otherwise agree, if on any date (i) Secured Note LLC shall receive any Affiliate Borrower Net Cash Proceeds pursuant to the applicable Affiliate Borrower Loan Documents or (ii) any Parent/Affiliate Guarantor shall receive any Affiliate Borrower Net Cash Proceeds pursuant to Section 6.16, in either case, in connection with the issuance of any Capital Stock (other than Capital Stock issued to any Permitted Investor, any ASOT Group Member or any other Affiliate Borrower Group Member), or the incurrence of any Indebtedness by any Affiliate Borrower Group Member (excluding any Indebtedness permitted to be incurred in accordance with Section 2.6(bthe Affiliate Borrower Loan Documents as in effect on the date of this Agreement (other than Sections 7.2(l) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%and 7.2(m) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any applicable Affiliate Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(bCredit Agreement). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing then on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds Affiliate Borrower Net Cash Proceeds by Secured Note LLC or any Parent/Affiliate Guarantor, the Term Loans, the Revolving Credit Loans and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Accountthe Swing Line Loans shall be prepaid, which Extraordinary Receipts when so deposited (A) and/or the outstanding Letters of Credit shall constitute Collateralbe cash collateralized, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment Applicable Prepayment Percentage of the Obligations amount of the Affiliate Borrower Net Cash Proceeds of such issuance or incurrence as set forth above in Section 2.6(b) and (b) deliver a certificate from 2.12(h), provided that, the Affiliate Borrower to Net Cash Proceeds of any Qualified Construction Refinancing received by Secured Note LLC or the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is Parent/Affiliate Guarantors required to be applied to prepay the Obligations Loans and/or cash collateralize the outstanding Letters of Credit pursuant to this Section 2.12(b) shall be applied as set forth in accordance with Section 2.6(b2.12(i). For the avoidance of doubt, the provisions of this Section 2.12(b) immediately upon shall only apply to the expiration Development Assets after the payment in full of the Extraordinary Receipts Reinvestment Periodoutstanding Indebtedness under the Development Loan Credit Agreement.
(vc) On (i) Subject to Section 2.12(j), unless the Required Prepayment Lenders shall otherwise agree, if on any date any ASOT Group Member shall receive Net Cash Proceeds from any Asset Sale, Purchase Price Refund or Recovery Event then, on the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which receipt by such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)ASOT Group Member of such Net Cash Proceeds, the Borrower Parties Term Loans, the Revolving Credit Loans and the Swing Line Loans shall make a mandatory prepayment be prepaid, and/or the outstanding Letters of the Obligations in Credit shall be cash collateralized, by an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation Applicable Prepayment Percentage of the amount of such prepayment. Each notice Net Cash Proceeds as set forth in Section 2.12(h); provided that, notwithstanding the foregoing, (A) Net Cash Proceeds subject to a Reinvestment Notice shall not be required to be applied until the applicable Reinvestment Prepayment Date with respect to the related Reinvestment Event, (B) with respect to any Asset Sale or Recovery Event, the aggregate Net Cash Proceeds of prepayment such Asset Sale or Recovery Event, as applicable, that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall specify not exceed an amount equal to the prepayment date Applicable Reinvestment Percentage of the aggregate amount of such Net Cash Proceeds, (C) on each Reinvestment Prepayment Date the Term Loans, the Revolving Credit Loans and the principal Swing Line Loans shall be prepaid, and/or the outstanding Letters of Credit shall be cash collateralized, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event as set forth in Section 2.12(h), (D) the Net Cash Proceeds from any Qualified JV Asset Sale required be applied to prepay the Loans and/or cash collateralize the outstanding Letters of Credit pursuant to this Section 2.12(c) shall be applied as set forth in Section 2.12(i) and (E) the Borrower may not deliver a Reinvestment Notice with respect to any Net Cash Proceeds until the aggregate amount of Net Cash Proceeds, Affiliate Borrower Net Cash Proceeds and Distributable Affiliate Proceeds equal to $500,000,000 has been applied to repay the Term Loans, the Revolving Credit Loans to be prepaidand the Swing Line Loans in accordance with Sections 2.12(c) and 2.12(d). Notwithstanding anything The provisions of this Section do not constitute a consent to the contrary herein, failure to provide such notice hereunder shall consummation of any Disposition not preclude the Borrower’s ability to make such prepayment hereunderpermitted by Section 7.5.
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Mandatory Prepayments. (ia) [Reserved]If any Borrower or any of their Subsidiaries Disposes of any property or assets (other than inventory in the ordinary course of business) which results in the realization by such Person of Net Cash Proceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (e) and (f) below); provided, however, that so long as no Default or Event of Default exists, Net Cash Proceeds relating to the disposition of obsolete or retired equipment in the ordinary course of a Loan Party’s (or a Loan Party’s Subsidiary’s) business shall not be included (and shall not count against the $500,000 threshold set forth above) to the extent the applicable Loan Party (or applicable Loan Party’s Subsidiary) intends to use such Net Cash Proceeds to acquire like assets useful to its business within ninety (90) days after the receipt of such Net Cash Proceeds or to reimburse itself for such a purchase occurring before receipt of such Net Cash Proceeds.
(iib) In Upon the event that, after the Agreement Date, incurrence or issuance by any Borrower Loan Party or any Subsidiary of a Borrower Party shall incur its Subsidiaries of any Funded Debt Indebtedness (other than Funded Debt Indebtedness expressly permitted under to be incurred or issued pursuant to Section 8.19.2 (including, one hundred percent (without limitation, Section 9.2(h))), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100%) % of the all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the receipt thereof by any Borrower Loan Party or such Subsidiary from (such incurrence prepayments to be applied as set forth in clauses (e) and (f) below).
(c) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, or receipt by any Loan Party or Loan Parties of any other Extraordinary Receipt, which in each case results in the realization by such Person or Persons of Net Cash Proceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall be paid within one prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (13) Business Day Days after the date of receipt of the proceeds thereof by such Borrower Party or such Subsidiary (such prepayments to the Lenders be applied as a mandatory prepayment of the Obligations set forth in accordance clauses (e) and (f) below); provided that with Section 2.6(b).
(iii) One hundred percent (100%) of the respect to any Net Cash Proceeds from any saleof an Extraordinary Receipt, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member at the election of the Lender Group or otherwise (other than with respect to the saleBorrowers, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party so long as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an no Event of Default shall have occurred and be continuing continuing, such Borrower or would result therefrom, the Borrower Parties such Subsidiary may elect to reinvest (A) utilize any Net Cash Proceeds from constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or property prior to the date casualty event, or (B) reinvest all or any payment thereof would have been required hereunder portion of the intent to reinvest such Net Cash Proceeds in similar assets for the business fixed capital or operating assets, in each case of a Borrower Party clause (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its businessA) and identifies the long-term assets which shall constitute such reinvestment or (B) so long as (x) within 180 days of the date of such sale or after receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds Proceeds, such repair, rebuilding or reinvestment shall have been deposited consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into a Blocked Account, which of such definitive agreement; and provided further that any Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal not subject to such Net Cash Proceeds definitive agreement or so reinvested shall be applied) immediately applied to the prepayment of the Obligations Loans as set forth above in this Section 2.6(b5.3(c).
(d) If for any reason the Revolving Facility Usage at any time exceed the Revolving Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans and Letter of Credit Borrowings and/or Cash Collateralize the Letter of Credit Obligations (bother than the Letter of Credit Borrowings) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an aggregate amount equal to such remaining Net excess (such prepayments and/or Cash Proceeds is required Collateralization to be applied as set forth in subsection (f) below). If for any reason, the Delayed Draw Term Loan Outstandings at any time exceed the Delayed Draw Term Facility, the Borrowers shall immediately prepay Delayed Draw Term Loans in an aggregate amount equal to such excess (such prepayments to be applied to prepay the Obligations remaining principal repayment installments thereof in accordance with Section 2.6(b) immediately upon the expiration inverse order of the Net Cash Proceeds Reinvestment Periodtheir maturities).
(ive) One hundred percent (100%) Each prepayment of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties Loans pursuant to the Lenders as a mandatory prepayment foregoing provisions of the Obligations in accordance with this Section 2.6(b5.3 (other than subsection (d). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or subsection (dg) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts below shall be applied) , first, to the prepayment of the Obligations as set forth above in Section 2.6(b) Term Loans (and, if applicable, any Delayed Draw Term Loans and (b) deliver Incremental Term Loans on a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”ratable basis). If , and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such Extraordinary Receipts are not fully reinvested during prepayment) and second, to the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration Revolving Credit Facility (without permanent reduction of the Extraordinary Receipts Reinvestment Period.
(vRevolving Credit Commitments) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in subsection (f) of this Section 2.10 and 5.3. Subject to Section 2.9, such prepayments shall be subject paid to any applicable prepayment premiums set forth herein and the Lenders pro rata in the other Loan Documents. Within the parameters accordance with Section 5.4.
(f) Prepayments of the applications set forth above, prepayments of the Term Loans Revolving Credit Facility made pursuant to this Section 2.6(c5.3 shall be applied, first, ratably to the Letter of Credit Borrowings, second, ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining Letter of Credit Obligations; and the amount remaining, if any, after the prepayment in full of all Letter of Credit Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining Letter of Credit Obligations in full may be retained by the Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Credit Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case), second, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such prepayment) and third, to Cash Collateralize the remaining Letter of Credit Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied first (without any further action by or notice to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the or from any Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the any other Loan Documents. Notwithstanding anything contained in this Section 2.6(cParty) to reimburse the contraryIssuing Lender or the Revolving Credit Lenders, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)as applicable.
(viig) The Borrower shall give prior written notice Upon the receipt of any prepayment required under this Section 2.6(c) to Cure Amount, the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by Borrowers shall prepay an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the aggregate principal amount of Loans equal to 100% of the Term Loans Cure Amount on or prior to the Cure Expiration Date (such prepayments to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderapplied as set forth in clauses (e) and (f) above).
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Mandatory Prepayments. The Company shall prepay the Loans until Paid in Full:
(a) concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any Asset Disposition in excess of $200,000 in the aggregate in any single Fiscal Year, in an amount equal to 100% of such Net Cash Proceeds;
(b) concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any issuance of Capital Stock of any Loan Party (excluding (i) [Reserved].
any issuance of Permitted Capital Stock of the Company pursuant to any employee or director option program, benefit plan, or compensation program, up to an aggregate amount of $200,000 in any Fiscal Year, (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary issuance of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) Permitted Capital Stock of the Company, the Net Cash Proceeds of which are used by the Company to make Financed Capital Expenditures, and (iii) the issuance of any Capital Stock pursuant to Section 11.5(d)) in an amount equal to 100% of all such Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to Loan Parties after the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).Closing Date;
(iiic) One hundred percent (100%) concurrently with the receipt by any Loan Party of the any Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result issuance of any enforcement action Debt of any Loan Party (excluding Debt permitted by Section 11.1), in an amount equal to 100% of all such Net Cash Proceeds;
(d) concurrently with the receipt by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss Loan Party of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any Insurance Proceeds as a result of an Event of Loss, if the aggregate amount of such saleNet Cash Proceeds received by the Loan Parties in connection with such Event of Loss and all other Events of Loss occurring during the current Fiscal Year exceeds $200,000.00, transferin an amount equal to 100% of such excess; provided, assignment or other disposition or that, if no Event of Default exists at the time of receipt of any such casualty or condemnation loss Net Cash Proceeds, subject to the prior written approval of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior its reasonable discretion, such prepayment shall not be required to the date any payment thereof would have been required hereunder of extent the intent to reinvest such Company reinvests the Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt Event of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest Loss in such identified long-term productive assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party Company or any of its Subsidiaries shall be paid within 90 days after the date of such Event of Loss or enters into a binding commitment therefor within said 90 day period and promptly thereafter makes such reinvestment. The Company will give the Administrative Agent at least five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give Days’ prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such mandatory prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
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Mandatory Prepayments. (a) Subject to Section 5.12, if on any date on which a Borrowing Base Certificate is delivered pursuant to Section 8.2(c), the Aggregate Outstanding Extensions of Credit exceeds the Borrowing Base, the Borrower shall prepay the Revolving Credit Loans and/or cash collateralize or replace Letters of Credit in an amount equal to the amount of such excess no later than the Business Day immediately following the date of delivery of such Borrowing Base Certificate.
(b) Subject to Section 5.12, if on any date the Aggregate Outstanding Extensions of Credit exceeds the Revolving Credit Commitments, the Borrower shall immediately prepay the Revolving Credit Loans and/or cash collateralize or replace Letters of Credit in an amount equal to the amount of such excess.
(c) Unless the Lenders having Credit Exposure Percentages aggregating at least 66 2/3% otherwise agree, the Borrower shall prepay the Revolving Credit Loans and reduce the Revolving Credit Commitments in an amount equal to (i) [Reserved]100% of the Net Proceeds of any sale or issuance of debt securities, and 75% of the Net Proceeds of any sale or issuance of any equity securities, in either case by the Borrower or any Subsidiary, whether in a public offering, a private placement or otherwise, but excluding any equity investment made by ▇.
▇. Childs or its Affiliates, its limited partners or the limited partners of its Affiliates, any equity investment made by any officer or employee of the Borrower pursuant to the Shareholder Agreement or any stock option plan, and any equity investment made by the selling parties in connection with a Permitted Acquisition, (ii) In the event that, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) % of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transferlease, assignment assignment, exchange or other dispositiondisposition for cash of any asset or group of assets (including, whether voluntarywithout limitation, but subject to clause (d) of this Section 5.5, insurance proceeds paid as a result of any enforcement action by destruction, casualty or taking of any member property of the Lender Group Borrower or otherwise any Subsidiary), not made in the ordinary course of business, by the Borrower or any Subsidiary of the Borrower, (other iii) 100% of the Net Proceeds from the termination of any pension plans of the Borrower or any Subsidiary, in any such case no later than three Business Days following receipt by the Borrower or such Subsidiary of such proceeds, together with respect accrued interest to such date on the sale, transfer or disposition of assets permitted under clauses (i) and amount prepaid; provided that no such prepayment shall be required pursuant to subclause (ii) of this Section 8.7(b)), or casualty or condemnation loss 5.5(c) with respect to up to $2,000,000 of such Net Proceeds received by the Borrower and its Subsidiaries during any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment fiscal year of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as (x) the Borrower Parties (a)(i) notify shall have notified the Administrative Agent in writing on of such receipt of such Net Proceeds, the amount thereof and that the Borrower or prior to the date any payment thereof would have been required hereunder of the intent such Subsidiary intends to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale Inventory or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are other property useful in the business of the Borrower and its Subsidiaries within 180 days following such Borrower Party receipt, and (Cy) shall, upon such Net Proceeds are so reinvested during such 180-day period. To the extent that the Borrower shall have so notified the Administrative Agent’s request Agent that it intended to so reinvest any such Net Proceeds and such Net Proceeds were not so reinvested within 180 days following receipt thereof, the occurrence Borrower shall immediately give the Administrative Agent notice thereof and during prepay the continuance of an Event of Default, be applied (or Revolving Credit Loans and reduce the Revolving Credit Commitments in an amount equal to such amount of Net Cash Proceeds which were not reinvested. Amounts prepaid pursuant to this Section 5.5(c) shall be applied) applied to the reduction of the Revolving Credit Commitments and the prepayment of the Obligations Revolving Credit Loans and/or to cash collateralize or replace Letters of Credit. Nothing in this Section 5.5(c) shall be construed to derogate any restriction or limitation contained in any Loan Document imposed on any transaction of the types described in this Section 5.5(c), including without limitation the restrictions set forth in Sections 9.2, 9.5 and 9.6 hereof.
(d) Net Proceeds received by the Borrower or any Subsidiary as proceeds of condemnation or insurance upon any destruction, casualty or taking with respect to any property of the Borrower or any Subsidiary need not be applied as set forth above in Section 2.6(b5.5(c) to the extent that such Net Proceeds are applied to the repair, rebuilding or replacement of the property which was the subject of such destruction, casualty or taking within 180 days after the receipt of such Net Proceeds. If required by the Administrative Agent, such Net Proceeds shall be held in a special collateral account, subject to the sole dominion and (b) deliver a certificate from the Borrower to control of the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds and in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on , as additional Collateral for the principal amount of Obligations and the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject Guarantees, until such time as it is to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests such repair, rebuilding or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)replacement.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
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Mandatory Prepayments. (iNotwithstanding the following, during a Waterfall Event, the order of application to the Obligations shall be made pursuant to Section 11.02(b) [Reserved]rather than as is provided in this Section 2.07.
(iia) In the event that, after the Agreement Date, When any Borrower Loan Party or any Subsidiary of a Borrower Party their Subsidiaries Disposes of any Collateral or other assets or receives proceeds of property or casualty insurance, within three (3) Business Days thereof, Loan Parties shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, repay Term Loans in an amount equal to one hundred percent (100%) percent of the Net Cash Proceeds received by net cash proceeds of such sale (i.e., gross cash proceeds less the reasonable out-of-pocket costs and expenses in respect of such Dispositions (including any Borrower Party taxes and similar amounts)) or all of the cash proceeds of such Subsidiary from insurance, as applicable, such incurrence repayments to be made promptly but in no event more than three (3) Business Days following receipt of such proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. Such repayments shall be applied to the outstanding principal amount of the Term Loans until paid in full. Notwithstanding the foregoing, unless and until an Event of Default has occurred and is continuing or would result therefrom, such proceeds from Dispositions and insurance payments that do not exceed $5,000,000 in the aggregate in any fiscal year may be retained by Loan Parties solely to acquire replacement assets without making a mandatory prepayment hereunder so long as (1) the fair market value of the acquired assets is equal to or greater than the fair market value of the assets which were Disposed or subject to the insurance payment, as applicable, and (2) the acquired assets are purchased by the applicable Loan Party within one year of the Disposal of the assets or receipt of the insurance payment, as applicable. If a Loan Party fails to meet the conditions set forth above, Loan Parties shall pay the proceeds to Agent to the extent not utilized in such acquisitions as a repayment of any outstanding Term Loans. The provisions of this Section 2.07(a) shall not be deemed to be implied consent to any such Disposition otherwise prohibited by the terms and conditions of this Agreement or any Other Document.
(b) Within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Loan Party or any of its Subsidiaries of any Extraordinary Receipts that exceed $100,000 in the aggregate after the Closing Date, Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to one hundred (100%) percent of such Extraordinary Receipts, net of any reasonable out of pocket fees and expenses incurred in collecting such Extraordinary Receipts. Such repayments shall be applied to the outstanding principal amount of the Term Loans until paid within in full. The provisions of this Section 2.07(b) shall not be deemed to be implied consent to any event giving rise to such Extraordinary Receipts otherwise prohibited by the terms and conditions of this Agreement.
(c) Within one (1) Business Day of the receipt by any Loan Party or any of its Subsidiaries of the proceeds of any Indebtedness (other than Indebtedness permitted pursuant to Section 7.07), Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to one hundred (100%) percent of such proceeds, net of any reasonable out of pocket fees and expenses related to the incurrence of such Indebtedness. Such repayments shall be applied to the outstanding principal amount of the Term Loans until paid in full. The provisions of this Section 2.07(c) shall not be deemed to be implied consent to the incurrence of Indebtedness otherwise prohibited by the terms and conditions of this Agreement.
(d) Within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier delivery of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b)9.07, or but in any event not later than sixty (B60) days after the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment end of each fiscal quarter of the Obligations Loan Parties, Borrower shall prepay the outstanding amount of the Term Loans in an amount equal to fifty percent (50%) of the Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b)Cash. Each such prepayment Such repayments shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory applied to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the outstanding principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances until paid in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)full.
(viie) The Except as otherwise provided herein, Borrower shall give prior written notice deliver to Agent, at the time of any each prepayment required under this Section 2.6(c2.07, (i) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory a financial officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent reasonably practicable, at least three days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Forbes Energy Services Ltd.)
Mandatory Prepayments. (i) [Reserved].
(ii) In the event that, after and on each occasion that any Net Proceeds are received by the Agreement Date, any Borrower Party or any Subsidiary other Loan Party in respect of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) Prepayment Event or if any of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations circumstances set forth in accordance with Section 2.6(b).
clauses (iii), (iv), (v) One hundred percent or (100%vi) of below occur, (x) the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of Borrower shall furnish the Lender Group or otherwise (other than Administrative Agent with respect written notice thereof pursuant to the sale, transfer or disposition of assets permitted under clauses (iSection 2.8(c) and (iiy) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders of such Net Proceeds or such occurrence, as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromapplicable, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under shall deposit in the Collection Account for application on the immediately following Payment Date:
(i) in the case of a Prepayment Event described in clause (a), (b) or (d) of the definition thereof, so long as an aggregate amount equal to such Net Proceeds; provided that, with respect to this clause (i), if (x) no Event of Default has occurred and is continuing, and (y) the Borrower Parties or any other Loan Party invests (a)(ior commits to invest) notify the Administrative Agent Net Proceeds from any Prepayment Event (or a portion thereof) that constitutes a Casualty Event in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which of the same or greater quality or value (as determined by the Borrower in good faith) within three (3) months after receipt of such Net Proceeds by the Borrower or such other Loan Party (including pursuant to any repair, restoration or replacement of assets), then, at the option of the Borrower, no prepayment shall constitute be required pursuant to this clause (i) in respect of such reinvestment within 180 days Net Proceeds in respect of such Prepayment Event (or, the applicable portion of such Net Proceeds, if applicable) except to the extent of the amount of any such Net Proceeds therefrom that have not been so invested (or committed to be invested) by the end of the three (3) month period from the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied Net Proceeds (or an amount equal if committed to be so invested within such Extraordinary Receipts shall be appliedthree (3) to the prepayment of the Obligations as set forth above in Section 2.6(bmonth period, have not been so invested within six (6) and (b) deliver a certificate months from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”Net Proceeds). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, at which time a prepayment shall be required in an amount equal to 100% of the amount of such remaining Extraordinary Receipts is required Net Proceeds that have not been so invested (or committed to be applied to prepay invested);
(ii) in the Obligations case of a Prepayment Event described in accordance with Section 2.6(bclause (b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.definition thereof, an aggregate amount equal to such Net Proceeds;
(viii) On if on any Payment Date (1) the date Residential Data Churn exceeds the Maximum Residential Data Churn, (2) the Video Churn exceeds the Maximum Video Churn, or (3) the Residential Data Penetration is less than the Minimum Residential Data Penetration, commencing with the first Payment Date following the Closing Date and continuing on each Payment Date until each of the applicable Maximum Residential Data Churn, Maximum Video Churn and Minimum Residential Data Penetration have been achieved for two consecutive Test Periods, the Cash Sweep Percentage of the Excess Cash Flow; provided that any such prepayment that is ten due and payable for the first and second full calendar months following the Closing Date shall be paid on the Payment Date immediately following the delivery of the applicable Manager Report for such month;
(10iv) Business Days after the earlier of if on any Payment Date (A) the date on which Debt Service Coverage Ratio is less than the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), Minimum Cash Sweep DSCR or (B) the date Consolidated Total Net Leverage Ratio exceeds the Maximum Cash Sweep Leverage Ratio, commencing with the first Payment Date following the Closing Date and continuing on which such financial statements were required to be delivered pursuant to Section 7.1(b) (each Payment Date until the “ECF Prepayment Date”)applicable Minimum Cash Sweep DSCR and Maximum Cash Sweep Leverage Ratio, as applicable, have been achieved for two consecutive Test Periods, the Borrower Parties shall make a mandatory prepayment Cash Sweep Percentage of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow Flow; provided that any such prepayment that is due and payable for the first and second full calendar months following the Closing Date shall be paid on the Payment Date immediately following the delivery of the applicable Manager Report for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by month;
(v) if an Authorized Signatory Event of Default has occurred and is continuing, at the election of the Borrower Parties certifying Requisite Lenders, the manner in which Cash Sweep Percentage of the Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.Flow; and
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required if a Manager Termination Event occurs under clause (vvii) of this Section 2.6(c).
the definition thereof (viiexcluding any “prepack” bankruptcy process under chapter 11 of the Bankruptcy Code of the Sponsor and its subsidiaries (excluding any Loan Party or InfraCo) The Borrower shall give prior written notice that is entered into in order to implement a liability management exercise (i) in which a chapter 11 plan is confirmed and consummated within 45 days after the petition date, (ii) where such chapter 11 plan provides that the Sponsor has assumed its obligations under the Management Agreement and (iii) the plan of any prepayment required reorganization or similar instrument implementing such a restructuring provides a customary “debtor release” in favor of the Lenders, the Agents and the Loan Parties under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except Agreement with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date Transactions and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderall material transaction relating thereto).
Appears in 1 contract
Sources: Receivables Facility Loan and Security Agreement (Altice USA, Inc.)
Mandatory Prepayments. (a) Upon (i) [Reserved].
the occurrence of a Change in Control of the Company, (ii) In a transfer of all or substantially all of the event thatassets of the Company to any Person in a single transaction or series of related transactions, after or (iii) a consolidation, merger or amalgamation of the Agreement Date, any Borrower Party Company with or any Subsidiary of a Borrower Party shall incur any Funded Debt into another Person in which the Company is not the surviving entity (other than Funded Debt permitted under a merger which is effected solely to change the jurisdiction of incorporation of the Company and results in a reclassification, conversion or exchange of outstanding shares of Common Stock solely into shares of Common Stock) (each of items (i), (ii) and (iii) being referred to as a “ Sale Event”), , then, in each case, the Company shall, upon request of the Majority Holders, redeem the Convertible Bridge Notes, subject to the provisions of Section 8.15 of the Convertible Bridge Notes. The amount payable upon any such redemption shall be the Redemption Price as defined in Section 5.1 of Exhibit A.
(b) At the option of Purchaser, upon the consummation of one hundred percent or more Financings (100%) except for similar subsequent financings consummated between ▇▇▇▇▇ Enterprises and the Company), the Company shall use 30% of the Net Cash Proceeds received by any Borrower Party or there from (unless such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member each such Financing is less than $300,000) to redeem the Convertible Bridge Notes.
(c) Upon the issuance of the Lender Group or otherwise Maximum Number of Shares, the receipt by the Company of Notice of Conversion requiring the issuance of shares of Common Stock in excess of the Maximum Number of Shares, and the failure within 40 days of such issuance to obtain shareholder approval to issue additional shares of Common Stock required to be issued in connection with such Notices of Conversion (other than with respect the “ Redemption Event”), the Company shall redeem the outstanding balance of each Convertible Bridge Note for the Redemption Price as defined in Section 5.1 of Exhibit A.
(d) In the event that there is an insufficient number of authorized, issuable, shares of Common Stock registered under the Registration Statement filed by the Company to allow Purchaser to fully convert the Convertible Bridge Notes held by the Purchaser and sell such shares issued thereon, then the Company shall immediately file an amendment to the salethen current Registration Statement to register a sufficient number of such shares to convert said Convertible Bridge Notes. Upon the failure within twenty (20) Trading Days measured from the date of filing the Registration Statement to register a sufficient number of such shares, transfer or disposition the Company shall redeem the outstanding balance of assets permitted under clauses (i) each Convertible Note and (ii) Warrant for the Formula Price. In addition, failure of Section 8.7(b)), or casualty or condemnation loss the Company to register a sufficient number of any Collateral or other assets of any Borrower Party such shares to fully convert said Convertible Notes shall be paid within two (2a Registration Default under Section 10.4(c) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment from the date of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event Notice of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior Conversion to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (Ai) the date on which redemption of the quarterly unaudited financial statements for any fiscal quarter (commencing with outstanding balance of the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), Convertible Bridge Notes or (Bii) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment full conversion of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative AgentConvertible Bridge Notes.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (Titan Iron Ore Corp.)
Mandatory Prepayments. (a) If any Borrower or any of their Subsidiaries Disposes of any property or assets (other than inventory in the ordinary course of business), the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (e) and (f) below); provided, however, that so long as no Default or Event of Default exists, (i) [Reserved].
the Borrowers and their Subsidiaries may receive up to $10,000,000 in the aggregate of such Net Cash Proceeds in any Fiscal Year without making the prepayment described in this Section 5.3(a), and (ii) In the event that, after the Agreement Date, any Borrower Party or Subsidiary may reinvest all or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) portion of the Net Cash Proceeds received by such Person from any Borrower such Disposition in fixed capital or operating assets, including real property (which reinvested amount shall not count against the $10,000,000 threshold set forth in clause (i) above), so long as (A) if any of the property or assets Disposed of constitute Collateral, the reinvestment must be in fixed capital or operating investments that also constitute Collateral and the Administrative Agent must have a perfected Lien in such assets, (B) within 180 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (C) if a definitive agreement to so reinvest has been executed within such 180-day period, then such reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be, upon the conclusion of the applicable 180-day period, immediately applied to the prepayment of the Loans as set forth in this Section 5.3(a).
(b) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 9.2 (including, without limitation, Section 9.2(h))), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the receipt thereof by any Loan Party or such Subsidiary from (such incurrence prepayments to be applied as set forth in clauses (e) and (f) below).
(c) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, or receipt by any Loan Party or Loan Parties of any other Extraordinary Receipt, which in each case results in the realization by such Person or Persons of Net Cash Proceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall be paid within one prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (13) Business Day Days after the date of receipt of the proceeds thereof by such Borrower Party or such Subsidiary (such prepayments to the Lenders be applied as a mandatory prepayment of the Obligations set forth in accordance clauses (e) and (f) below); provided that with Section 2.6(b).
(iii) One hundred percent (100%) of the respect to any Net Cash Proceeds from any saleof an Extraordinary Receipt, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member at the election of the Lender Group or otherwise (other than with respect to the saleBorrowers, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party so long as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an no Event of Default shall have occurred and be continuing continuing, such Borrower or would result therefrom, the Borrower Parties such Subsidiary may elect to reinvest (A) utilize any Net Cash Proceeds from constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or property prior to the date casualty event, or (B) reinvest all or any payment thereof would have been required hereunder portion of the intent to reinvest such Net Cash Proceeds in similar assets for the business fixed capital or operating assets, in each case of a Borrower Party clause (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its businessA) and identifies the long-term assets which shall constitute such reinvestment or (B) so long as (x) within 180 days after receipt of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the date Loans as set forth in this Section 5.3(c).
(d) If for any reason the Revolving Facility Usage at any time exceed the Revolving Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans and Letter of Credit Borrowings and/or Cash Collateralize the Letter of Credit Obligations (other than the Letter of Credit Borrowings) in an aggregate amount equal to such excess (such prepayments and/or Cash Collateralization to be applied as set forth in subsection (f) below). If for any reason, the Delayed Draw Term Loan Outstandings at any time exceed the Delayed Draw Term Facility, the Borrowers shall immediately prepay Delayed Draw Term Loans in an aggregate amount equal to such excess (such prepayments to be applied to the remaining principal repayment installments thereof in inverse order of their maturities).
(e) Each prepayment of Loans pursuant to the foregoing provisions of this Section 5.3 (other than subsection (d)) or subsection (g) below shall be applied, first, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and, any Incremental Term Loans, the Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), any Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and any other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis, on a ratable basis (or, to the extent agreed by the lenders providing any such other Indebtedness, on a less than ratable basis), in each case subject to any Applicable Intercreditor Agreement), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such sale or receipt prepayment) (it being understood that the portion of insurance proceeds the Net Cash Proceeds allocated to any Closing Date Term Loans, Delayed Draw Term Loans, any Incremental Term Loans, the Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), any Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and any other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis shall not exceed the amount of the Net Cash Proceeds required to be allocated to such Closing Date Term Loans, Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (iito the extent secured by the Collateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) confirm and such other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis pursuant to the terms thereof, in each case, determined by the product of (x) the amount of such Net Cash Proceeds have been deposited into and (y) a Blocked Accountfraction, which Net Cash Proceeds when so deposited (A) shall constitute Collateralthe numerator of which is the outstanding principal amount of such Closing Date Term Loans, securing Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (to the payment of extent secured by the Obligations then outstandingCollateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and such other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis and (B) may be withdrawn the denominator of which is the sum of the outstanding principal amount of such Closing Date Term Loans, Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (to the extent secured by the applicable Borrower Party solely Collateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to reinvest in the extent secured by the Collateral on a pari passu basis) and such identified long-term assets other Indebtedness permitted to be incurred hereunder that are useful in is secured by the business Collateral on a pari passu basis (and the remaining amount, if any, of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) allocated to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations Loans in accordance with Section 2.6(bthe terms hereof)) immediately upon and second, to the expiration Revolving Credit Facility (without permanent reduction of the Net Cash Proceeds Reinvestment Period.
(ivRevolving Credit Commitments) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in subsection (f) of this Section 2.10 and 5.3. Subject to Section 2.9, such prepayments shall be subject paid to the Lenders pro rata in accordance with Section 5.4. For the avoidance of doubt, the proceeds of any applicable prepayment premiums set forth herein Indebtedness that is not prohibited to be incurred hereunder and is incurred for the purpose of refinancing other Indebtedness in the other Loan Documents. Within the parameters a manner not prohibited hereunder shall be allocated solely to refinance such then-existing Indebtedness being refinanced.
(f) Prepayments of the applications set forth above, prepayments of the Term Loans Revolving Credit Facility made pursuant to this Section 2.6(c5.3 shall be applied, first, ratably to the Letter of Credit Borrowings, second, ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining Letter of Credit Obligations; and the amount remaining, if any, after the prepayment in full of all Letter of Credit Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining Letter of Credit Obligations in full may be retained by the Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Credit Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case), second, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such prepayment) and third, to Cash Collateralize the remaining Letter of Credit Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied first (without any further action by or notice to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the or from any Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the any other Loan Documents. Notwithstanding anything contained in this Section 2.6(cParty) to reimburse the contraryIssuing Lender or the Revolving Credit Lenders, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)as applicable.
(viig) The Borrower shall give prior written notice Upon the receipt of any prepayment required under this Section 2.6(c) to Cure Amount, the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by Borrowers shall prepay an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the aggregate principal amount of Loans equal to 100% of the Term Loans Cure Amount on or prior to the Cure Expiration Date (such prepayments to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderapplied as set forth in clauses (e) and (f) above).
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Mandatory Prepayments. (a) Subject to Section 6.12, if on any date the aggregate outstanding principal amount of the 364-Day Revolving Credit Loans exceeds the 364-Day Revolving Credit Commitments, the Borrower shall immediately prepay the 364-Day Revolving Credit Loans in an amount equal to the amount of such excess.
(b) Subject to Section 6.12, if on any date the Aggregate Outstanding Five Year Extensions of Credit of all the Lenders exceed the Five Year Revolving Credit Commitments, the Borrower shall immediately prepay the Five Year Revolving Credit Loans and cash collateralize or replace the Letters of Credit in an amount equal to the amount of such excess.
(c) Unless the Required Lenders otherwise agree, the Borrower shall prepay the Loans and reduce the Commitments in an amount equal to (i) [Reserved].
100% of the Net Proceeds of any sale or issuance of debt securities by the Borrower or any Subsidiary, whether in a public offering, a private placement or otherwise (other than Indebtedness permitted under Section 10.2, and it being understood that "earn-out" arrangements entered into in connection with Permitted Acquisitions shall not be deemed to be debt securities for purposes of this Section 6.5(c)), and (ii) In the event thatsubject to clause (f) of this Section 6.5, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) % of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transferlease, assignment assignment, exchange or other dispositiondisposition for cash of any asset or group of assets (including, whether voluntarywithout limitation, insurance proceeds paid as a result of any enforcement action by destruction, casualty or taking of any member property of the Lender Group Borrower or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)any Subsidiary), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party not made in the ordinary course of its business) and identifies , by the long-term assets which shall constitute such reinvestment within 180 days Borrower or any Subsidiary of the date Borrower, in any such case no later than three Business Days following receipt by the Borrower or such Subsidiary of such sale or receipt of insurance proceeds and proceeds, together with accrued interest to such date on the amount prepaid; provided that (A) no such prepayment shall be required pursuant to subclause (ii) confirm that of this Section 6.5(c) unless the aggregate amount of such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing received by the payment Borrower and its Subsidiaries and not previously applied to prepayment of the Obligations then outstandingTerm Loans and the reduction of the Commitments pursuant to Section 6.5(c)(ii) is at least $500,000, and (B) may be withdrawn by the applicable Borrower Party solely to reinvest in no such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds prepayment shall be appliedrequired pursuant to this Section 6.5(c) to the prepayment extent that the aggregate amount of such Net Proceeds does not exceed $5,000,000 or the ratio of (1) Consolidated Total Indebtedness of the Obligations Borrower as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration last day of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or Rolling Period most recently ended prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds Net Proceeds and (ii) confirm that such Extraordinary Receipts for which the Borrower shall have been deposited into required to provide financial statements pursuant to Section 9.1 to (2) Consolidated EBITDA of the Borrower for such period (calculated on a Blocked Accountpro forma basis, which Extraordinary Receipts when so deposited (Aas if the event giving rise to the receipt of such Net Proceeds had occurred as of the first day of such Rolling Period) would be less than 1.75 to 1. Amounts prepaid pursuant to this Section 6.5(c) shall constitute Collateralbe applied first, securing prior to the payment Conversion Date, to the reduction of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long364-term assets that are useful in the business of such Borrower Party Day Revolving Credit Commitments and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as 364-Day Revolving Credit Loans, and from and after the Conversion Date, to installments of principal of the Term Loans until paid in full, and second to the reduction of the Five Year Revolving Credit Commitments and the prepayment of the Five Year Revolving Credit Loans and/or cash collateralize or replace the Letters of Credit. Prepayments of installments of Term Loans shall be applied pro rata to installments of principal of the Term Loans until paid in full and such amounts so prepaid may not be reborrowed. Nothing in this Section 6.5(c) shall be construed to derogate any restriction or limitation contained in any Loan Document imposed on any transaction of the types described in this Section 6.5(c), including without limitation the restrictions set forth above in Section 2.6(b) Sections 10.2, 10.5 and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period10.6 hereof.
(vd) On the date that is ten (10) Business Days after or before the earlier of (A) the date on which the quarterly unaudited financial statements for any referred to in Section 9.1(a) are required to be delivered in respect of a fiscal quarter (commencing year of the Borrower, beginning with the fiscal quarter year ending June 30December 31, 2018) are delivered pursuant to Section 7.1(b)2000, or (B) and the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”)are actually delivered, the Borrower Parties shall make a mandatory prepay the Term Loans in the amount of 75% of Excess Cash Flow for the fiscal year covered by such financial statements, together with accrued interest to such date on the amount prepaid; provided that no such prepayment shall be required pursuant to this Section 6.5(d) if the ratio of (1) Consolidated Total Indebtedness of the Obligations Borrower as of the last day of the Rolling Period most recently ended immediately prior to the date the Excess Cash Flow is calculated as provided herein to (2) Consolidated EBITDA of the Borrower for such period is less than 1.75 to 1. Amounts prepaid pursuant to this Section 6.5(d) shall be applied pro rata to installments of principal of the Term Loans until paid in full and such amounts so prepaid may not be reborrowed.
(e) Unless the Required Lenders otherwise agree, the Borrower shall prepay the Term Loans in an amount equal to fifty percent (50%) % of Excess Cash Flow for such fiscal quarter the Net Proceeds of any sale or issuance of any equity securities by the Borrower or any Subsidiary, whether in accordance with Section 2.6(b). Each a public offering, a private placement or otherwise, other than amounts received upon exercise of stock options issued pursuant to a stock option plan permitted under this Agreement, and other than any Net Proceeds from any sale or issuance of equity securities received prior to the Conversion Date; provided that no such prepayment shall be accompanied required pursuant to this Section 6.5(e) unless the aggregate amount of such Net Proceeds received by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting its Subsidiaries and not previously applied to prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c6.5(e) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except $500,000 or such Net Proceeds result from the issuance of equity securities in connection with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.Permitted
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Mandatory Prepayments. (iA) [Reserved].
(ii) In Upon receipt by the event thatBorrower or any of its Subsidiaries, on or after the Agreement Closing Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds arising from any saleDebt Issuance, transferEquity Issuance, assignment Asset Sale or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromCasualty Event, the Borrower Parties may elect to reinvest Net Cash Proceeds from shall promptly (and in any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss event no later than the Business Day following the receipt of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for Proceeds), but solely to the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm extent that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be appliedProceeds) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to the obligations under the Existing Credit Agreement, notify the Administrative Agent thereof and within ten (10) Business Days of such receipt, prepay the Obligations Loans in an amount equal to 100% of such Net Cash Proceeds; provided that no such prepayment shall be required pursuant to this Section 2.10(b)(i)(A) with respect to Net Cash Proceeds arising from any Asset Sale or Casualty Event that Parent or any Subsidiary shall reinvest in accordance with Section 2.6(b2.10(b)(i)(B);
(B) immediately upon the expiration The Borrower or any Subsidiary may, at its option, reinvest all or any portion of the any Net Cash Proceeds Reinvestment Period.
arising from any Asset Sale or Casualty Event up to an aggregate amount not to exceed $250 million in assets useful for the Borrower’s or a Subsidiary’s business within (ivx) One hundred percent twelve (100%12) months following receipt of such Net Cash Proceeds or (y) if the Extraordinary Receipts in excess Borrower or a Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, within six (6) months following the last day of $2,500,000 in such twelve month period; provided that, any such Net Cash Proceeds that are not so reinvested within the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries applicable time period set forth above shall be paid applied as set forth in Section 2.10(b)(i)(A) or Section 2.08(c)(i) within five (5) Business Days after the end of receipt thereof by the Borrower Parties applicable time period set forth above; and
(C) Notwithstanding anything in this Section 2.10(b)(i) or in Section 2.08(c)(i) to the Lenders as contrary, with respect to any reduction of Commitments under Section 2.08(c)(i) or prepayment under Section 2.10(b)(i), the Borrowers may use a mandatory prepayment portion of the Obligations Net Cash Proceeds from such Asset Sale or Casualty Event to prepay or repurchase any other senior Indebtedness (the “Applicable Other Indebtedness”) to the extent required or permitted pursuant to the terms of the documentation governing such Applicable Other Indebtedness, in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefromwhich case, the Borrower Parties may elect amount of the reduction of Commitments pursuant to reinvest amounts constituting Extraordinary Receipts under clause (a), (bSection 2.08(c)(i) or (d) the amount of the definition thereof, so long as prepayment required to be offered pursuant to Section 2.10(b)(i) with respect to such Net Cash Proceeds shall be deemed to be the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior amount equal to the date any payment thereof would have been required hereunder product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the intent to reinvest such Extraordinary Receipts in Loans and the business denominator of a Borrower Party and identifies which is the long-term assets which shall constitute such reinvestment within 180 days sum of the date of receipt outstanding principal amount of such proceeds Applicable Other Indebtedness and the outstanding principal amount of such Loans.
(ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately Promptly upon the expiration of the Extraordinary Receipts Reinvestment Bridge Facility Escrow Period.
, the Borrower shall notify the Administrative Agent thereof and apply any remaining amounts deposited in the Bridge Facility Escrow Account (vless (x) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30fees, 2018) are delivered pursuant to Section 7.1(b), costs or (B) the date on which such financial statements were expenses required to be delivered pursuant to Section 7.1(bpaid under the terms of the Bridge Facility Escrow Agreement (if any) and (y) any interest accruing during the “ECF Prepayment Date”), Bridge Facility Escrow Period on amounts deposited in the Borrower Parties shall make a mandatory Bridge Facility Escrow Account and which remain in the Bridge Facility Escrow Account at the end of the Bridge Facility Escrow Period) towards prepayment of the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative AgentLoans.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Sources: Senior Bridge Credit Agreement (Delphi Automotive PLC)
Mandatory Prepayments. (i) [Reserved]On the date of receipt by any Credit Party or any of their Subsidiaries of any net cash proceeds in excess of $200,000 in the aggregate during any Fiscal Year from any Asset Sales (other than Permitted Dispositions), the Borrowers shall prepay the Notes as set forth in Section 2.3(e) in an aggregate amount equal to 100% of such net cash proceeds.
(ii) In On the event that, after the Agreement Date, date of receipt by any Borrower Credit Party or any Subsidiary of a Borrower Party their Subsidiaries, or the Agent as loss payee, of any net cash proceeds from any Destruction or Taking, the Borrowers shall incur any Funded Debt other than Funded Debt permitted under prepay the Notes as set forth in Section 8.12.3(e) in an aggregate amount equal to 100% of such net cash proceeds; provided, one hundred percent so long as no Event of Default (100%or event or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) shall have occurred and be continuing on the date of receipt thereof or caused thereby, the Borrowers shall have the option to apply such net cash proceeds, prior to the date that is 90 days following receipt thereof, for purposes of the Net Cash Proceeds received by any Borrower Party repair, restoration or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt replacement of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)applicable assets thereof.
(iii) One hundred percent On the date of receipt by any Credit Party or any of their Subsidiaries of any net cash proceeds in excess of $5,000,000 in the aggregate during the term of this Agreement from a capital contribution by any Person (100%other than a Subsidiary of Elevate Credit Parent) to, or the issuance to any Person (other than a Credit Party or a Subsidiary of a Credit Party) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result Equity Interests of any enforcement action Credit Party or any of their Subsidiaries, including, without limitation, in connection with a Public Offering, the Borrowers shall prepay the Notes as set forth in Section 2.3(e) in an aggregate amount equal to 100% of such net cash proceeds, but subject to the provisions of Section 2.3(d).
(iv) On the date of receipt by any member Credit Party or any of their Subsidiaries of any net cash proceeds from the Lender Group incurrence of any Indebtedness of any Credit Party or otherwise any of their Subsidiaries (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)Permitted Indebtedness), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party the Borrowers shall be paid within two (2prepay the Notes as set forth in Section 2.3(e) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an aggregate amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date 100% of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Periodnet cash proceeds.
(v) On the date that is ten of receipt by any Credit Party or any of their Subsidiaries of any Extraordinary Receipts, the Borrowers shall prepay the Notes as set forth in Section 2.3(e) in an aggregate amount equal to 100% of such Extraordinary Receipts.
(10vi) Business Days after If at any time the earlier then outstanding principal balance of (A) the date on which US Term Notes shall exceed the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30Maximum US Term Note Balance, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(bUK Term Notes shall exceed the Maximum UK Term Note Balance, or (C) (the “ECF Prepayment Date”)First Out Notes shall exceed the Maximum First Out Note Balance, then in each case the applicable Borrower Parties or Borrowers shall make a mandatory prepayment of immediately prepay the Obligations in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner applicable Notes as set forth in Section 2.10 and shall be subject 2.3(e) in an amount sufficient to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c)eliminate such excess.
(vii) The Borrower shall give prior written notice of Concurrently with any prepayment required under of the applicable Notes pursuant to this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto2.3(b), andthe Borrower Representative, except with respect to prepayments required pursuant to clause (v) aboveon behalf of the Borrowers, shall deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by of an Authorized Signatory of the Borrower setting forth in reasonable detail authorized officer thereof demonstrating the calculation of the amount of the applicable proceeds. In the event that the Credit Parties shall subsequently determine that the actual amount of such prepayment. Each notice proceeds exceeded the amount set forth in such certificate (including as a result of the conversion of non-cash proceeds into cash), the applicable Borrower(s) shall promptly make an additional prepayment shall specify of all the prepayment date Notes in an amount equal to such excess (or applicable percentage thereof), and the principal amount Borrower Representative, on behalf of the Term Loans to be prepaid. Notwithstanding anything Borrowers, shall concurrently therewith deliver to the contrary herein, failure to provide Agent a certificate of an authorized officer thereof demonstrating the derivation of such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderexcess.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved]If at any time the aggregate outstanding balance of the Revolving Credit Loan exceeds the Maximum Amount, Co-Borrowers shall immediately repay the aggregate outstanding Revolving Credit Loans to the extent required to eliminate such excess and at Co-Borrowers' option, such payment shall be applied first to such Revolving Credit Loans which are Prime Rate Loans.
(ii) In the event thatPromptly, after the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b).
(iii) One hundred percent (100%) of the Net Cash Proceeds from any sale, transfer, assignment or other disposition, whether voluntary, as a result of any enforcement action by any member of the Lender Group or otherwise (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate but in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid event within five (5) Business Days Days, following receipt by any Co-Borrower of receipt thereof cash proceeds of any asset sale, assignment, transfer, loss, casualty or other disposition (including condemnation proceeds and insurance proceeds from loss unless such insurance proceeds are otherwise used to restore, replenish or repair assets and such loss does not exceed $1,000,000), but excluding proceeds of asset dispositions permitted by Section 6.8(a), (c), (d), (e) or (f), Co-Borrowers shall prepay the Borrower Parties Loans in an amount equal to all such proceeds, net of (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Co-Borrowers in connection therewith (in each case, paid to non-Affiliates), (B) all sales, transfer and recording taxes, (C) amounts payable to holders of senior Liens (to the Lenders extent such Liens constitute Permitted Encumbrances hereunder), if any, (D) an appropriate reserve for income taxes in accordance with GAAP in connection therewith and (E) appropriate amounts to be provided by Co-Borrowers as a mandatory reserve, in accordance with GAAP, against any liabilities associated with the assets sold or disposed of in such asset disposition, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with the assets sold or disposed of in such asset disposition; provided that to the extent any reserve, or part thereof, under this Section 1.5(b)(ii) is reversed or is no longer applicable, such amount shall be applied toward prepayment of the Obligations Loans as provided in this Section. Any such prepayment shall be applied in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a)c) below.
(iii) If Cigar or any other Co-Borrower issues Stock or debt securities permitted hereunder, (b) or (d) of no later than the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of Business Day following the date of receipt of such the proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Accountthereof, which Extraordinary Receipts when so deposited (A) Co-Borrower shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Extraordinary Receipts shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment of the Obligations Loans in an amount equal to fifty percent all such cash proceeds, net of all discounts and commissions or brokerage fees and other reasonable costs paid to non-Affiliates in connection therewith and net of any transfer, recording or similar taxes. The foregoing shall not apply to (50%A) sales of Excess Cash Flow for such fiscal quarter in accordance with Stock pursuant to stock options or incentive plans of Cigar, (B) intercompany equity and debt issuances permitted hereunder between and among Cigar or any other Co-Borrower and (C) all Indebtedness permitted under Section 2.6(b6.3(a)(ii), (iv) or (vi) and any refinancing thereof. Each Any such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
(vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under accordance with clause (vc) of this Section 2.6(c)below.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
Appears in 1 contract
Mandatory Prepayments. (i) [Reserved].If on any day the Revolver Usage exceeds the Maximum Availability, Borrowers shall immediately pay to Agent an amount equal to such excess to be applied to the outstanding principal of the Advances;
(ii) In If on any day the event thatRevolver Commitment is terminated pursuant to Section 9.1, after Borrowers shall immediately repay in full the Agreement Date, any Borrower Party or any Subsidiary of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) of the Net Cash Proceeds received by any Borrower Party or such Subsidiary from such incurrence shall be paid within one (1) Business Day of receipt of the proceeds thereof by such Borrower Party to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b)Term Loans.
(iii) One hundred percent (100%) of Immediately upon the Net Cash Proceeds from receipt by any sale, transfer, assignment or other disposition, whether voluntary, as a result Loan Party of any enforcement action proceeds of any sale or disposition by any member Loan Party or its Subsidiaries of property or assets, including any collections of Accounts generated from the Lender Group sale of such property or otherwise assets, (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations Permitted Disposition described in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent such Net Cash Proceeds are not fully reinvested during the Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Net Cash Proceeds Reinvestment Period.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as of such term) or the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date receipt by any payment thereof would have been required hereunder Loan Party of the intent proceeds of any insurance policy with respect to reinvest such Extraordinary Receipts in Inventory or condemnation awards with respect to Inventory, Borrowers shall prepay the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days outstanding principal amount of the date of receipt of such proceeds Term Loans and (iithe Advances in accordance with Section 2.4(d) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to 100% of the Net Cash Proceeds or the insurance or condemnation proceeds received by such Extraordinary Receipts shall be applied) Person in connection with such sales or dispositions or such casualty or condemnation event to the extent that the aggregate amount of Net Cash Proceeds received by all Loan Parties and their Subsidiaries (and not paid to Agent as a prepayment of the Obligations as set forth above Term Loans and the Advances) for all such sales or dispositions shall exceed $1,000,000 since the Closing Date (other than sales or dispositions of property or assets, insurance proceeds or condemnation awards with respect to Inventory or any proceeds thereof (including collections of Accounts) in respect of the Inventory Divestiture Plan all of which shall be applied in accordance with Section 2.6(b2.4(d)). Nothing contained in this subclause (iii) and shall permit any Loan Party or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(biv) deliver a certificate from Upon the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such receipt by any Loan Party or any of its Subsidiaries of any Extraordinary Receipts in excess of $1,000,000 in the business of a Borrower Party within 180 days aggregate in any Fiscal Year, except for such amounts applied for repairs, replacements or restoration in accordance with Section 6.7(b), Borrowers shall prepay the outstanding principal of the date of receipt of such proceeds (Term Loans and the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, Advances in accordance with Section 2.4(d) below in an amount equal to 100% of such remaining Extraordinary Receipts is required to be applied to prepay the Obligations Receipts, net of any reasonable expenses incurred in accordance with Section 2.6(b) immediately upon the expiration of the collecting such Extraordinary Receipts Reinvestment PeriodReceipts.
(v) On Within ten (10) Business Days of delivery to the Agent of each of the monthly financial statements in respect of the last month of a fiscal quarter pursuant to Section 6.3(b), beginning with the fiscal quarter ended June 28, 2003, or, if such financial statements are not delivered to the Agent on the date that is such statements are required to be delivered pursuant to Section 6.3(b), ten (10) Business Days after the earlier of (A) the date on which the quarterly unaudited financial such statements for any fiscal quarter (commencing with the fiscal quarter ending June 30, 2018) are delivered pursuant to Section 7.1(b), or (B) the date on which such financial statements were required to be delivered to Agent pursuant to Section 7.1(b) (the “ECF Prepayment Date”6.3(b), the Borrower Parties Borrowers shall make a mandatory prepayment pay to Agent an amount equal to 75% of the Obligations Excess Cash Flow for the three-month period covered by such financial statements, to be applied in accordance with Section 2.4(d).
(vi) Upon the issuance or incurrence by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness referred to in Section 7.1), or the sale or issuance by any Loan Party or any of its Subsidiaries of any shares of its Stock, the Borrowers shall prepay the outstanding amount of the Term Loans and the Advances in accordance with Section 2.4(d) in an amount equal to fifty percent (50%) of Excess Cash Flow for such fiscal quarter in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory 100% of the Borrower Parties certifying the manner Net Cash Proceeds received by such Person in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory to the Administrative Agent.
connection therewith. The provisions of this subsection (vi) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documents. Within the parameters of the applications set forth above, prepayments of the Term Loans pursuant to this Section 2.6(c) shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall not be deemed to allow the Borrower Parties be implied consent to issue Equity Interests any such issuance, incurrence or incur Funded Debt except as sale otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) and conditions of this Section 2.6(c)Agreement.
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunder.
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Mandatory Prepayments. (ia) [Reserved]If at any time the aggregate outstanding principal balance of all Revolving Credit Advances made hereunder plus the aggregate stated amount of all Letters of Credit outstanding exceeds the Maximum Revolving Credit Amount, the Borrowers shall immediately repay to the Bank an amount equal to such excess.
(iib) In The Borrowers will make all required principal payments on the event thatTerm Loan on the dates when due.
(c) The Borrowers shall, after on the Agreement Date, any Borrower Party or any Subsidiary date of a Borrower Party shall incur any Funded Debt other than Funded Debt permitted under Section 8.1, one hundred percent (100%) receipt of the Net Cash Proceeds received by any Borrower Party or such Subsidiary any of their Subsidiaries from such incurrence shall be paid within one (1i) Business Day the sale, lease, transfer or other disposition of receipt any assets of the proceeds thereof by such any Borrower Party to the Lenders as a mandatory prepayment or any of the Obligations in accordance with Section 2.6(b).
their Subsidiaries (iii) One hundred percent (100%) of the other than Net Cash Proceeds from a transaction permitted under Section 9.5), (ii) the incurrence or issuance by any saleBorrower or any of their Subsidiaries of any Indebtedness for borrowed money, transferexcept for the Bank Obligations, assignment (iii) the sale or issuance by any Borrower or any of their Subsidiaries of any capital stock or other dispositionownership or profit interest or any warrants, whether voluntary, as a result of any enforcement action by any member of the Lender Group options or otherwise rights to acquire capital stock or other ownership or profits interest (other than with respect to the sale, transfer or disposition of assets permitted under clauses (i) and (ii) of Section 8.7(b)), or casualty or condemnation loss of any Collateral or other assets of any Borrower Party shall be paid within two (2) Business Days of receipt thereof by any Borrower Party as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest Net Cash Proceeds from any such sale, transfer, assignment sale or other disposition or any such casualty or condemnation loss of any Collateral or such other assets, so long issuance which described as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Net Cash Proceeds in similar assets for the business of a Borrower Party (which assets shall be consistent with the assets utilized by such Borrower Party in the ordinary course one of its business) and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of such sale or receipt of insurance proceeds and (ii) confirm that such Net Cash Proceeds have been deposited into a Blocked Account, which Net Cash Proceeds when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied (or an amount equal to such Net Cash Proceeds shall be applied) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Net Cash Proceeds in the business of a Borrower Party within 180 days of the date of such sale or receipt of insurance proceeds (the “Net Cash Proceeds Reinvestment Period”). If and to the extent purposes undertaking acquisitions if such Net Cash Proceeds are not fully reinvested during used to finance any Permitted Acquisition or any other acquisition permitted under Section 9.7(b) within ninety (90) days of the receipt thereof by such Borrower or Subsidiary), prepay an aggregate principal amount of the Term Loan equal to the amount of such Net Cash Proceeds Reinvestment Period, an amount equal to such remaining Net Cash Proceeds is required to Proceeds. Partial prepayments of the Term Loan under this Section 4.1(c) shall be applied to prepay the Obligations scheduled principal payments on the Term Loan in accordance with Section 2.6(b) immediately upon the expiration inverse order of maturity and shall be applied first to portions of the Net Cash Proceeds Reinvestment PeriodTerm Loan which are outstanding as Prime Rate Loans.
(iv) One hundred percent (100%) of the Extraordinary Receipts in excess of $2,500,000 in the aggregate in any fiscal year received by any Borrower Party or any of its Subsidiaries shall be paid within five (5) Business Days of receipt thereof by the Borrower Parties to the Lenders as a mandatory prepayment of the Obligations in accordance with Section 2.6(b). Notwithstanding the foregoing, unless an Event of Default shall have occurred and be continuing or would result therefrom, the Borrower Parties may elect to reinvest amounts constituting Extraordinary Receipts under clause (a), (b) or (d) of the definition thereof, so long as the Borrower Parties (a)(i) notify the Administrative Agent in writing on or prior to the date any payment thereof would have been required hereunder of the intent to reinvest such Extraordinary Receipts in the business of a Borrower Party and identifies the long-term assets which shall constitute such reinvestment within 180 days of the date of receipt of such proceeds and (ii) confirm that such Extraordinary Receipts have been deposited into a Blocked Account, which Extraordinary Receipts when so deposited (A) shall constitute Collateral, securing the payment of the Obligations then outstanding, (B) may be withdrawn by the applicable Borrower Party solely to reinvest in such identified long-term assets that are useful in the business of such Borrower Party and (C) The Borrowers shall, upon the Administrative Agent’s request following the occurrence and during the continuance of an Event of Default, be applied within ninety (or an amount equal to such Extraordinary Receipts shall be applied90) to the prepayment of the Obligations as set forth above in Section 2.6(b) and (b) deliver a certificate from the Borrower to the Administrative Agent that states that the Borrower Parties have reinvested such Extraordinary Receipts in the business of a Borrower Party within 180 days of the date of receipt of such proceeds (the “Extraordinary Receipts Reinvestment Period”). If and to the extent such Extraordinary Receipts are not fully reinvested during the Extraordinary Receipts Reinvestment Period, an amount equal to such remaining Extraordinary Receipts is required to be applied to prepay the Obligations in accordance with Section 2.6(b) immediately upon the expiration of the Extraordinary Receipts Reinvestment Period.
(v) On the date that is ten (10) Business Days after the earlier end of (A) the date on which the quarterly unaudited financial statements for any each fiscal quarter (year, commencing with the fiscal quarter year ending June 30on December 31, 2018) are delivered pursuant to Section 7.1(b)2001, or (B) the date on which such financial statements were required to be delivered pursuant to Section 7.1(b) (the “ECF Prepayment Date”), the Borrower Parties shall make a mandatory prepayment prepay an aggregate principal amount of the Obligations in an amount Term Loan equal to fifty percent (50%) 25% of Consolidated Excess Cash Flow for such fiscal quarter year up to a maximum of $500,000 per annum (excluding any amounts included in accordance with Section 2.6(b). Each such prepayment shall be accompanied by a certificate signed by an Authorized Signatory of the Borrower Parties certifying the manner in which Consolidated Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance satisfactory are used to the Administrative Agent.
(vifinance any Permitted Acquisition or any other acquisition permitted under Section 9.7(b) Any payments due under this Section 2.6(c) shall be accompanied by all accrued interest on the principal amount within 90 days of the Loans being prepaid and applied in the manner set forth in Section 2.10 and shall be subject to any applicable prepayment premiums set forth herein and in the other Loan Documentssuch fiscal year end). Within the parameters of the applications set forth above, Partial prepayments of the Term Loans pursuant to Loan under this Section 2.6(c4.1(d) shall be applied to the scheduled principal payments on the Term Loan in inverse order of maturity and shall be applied first to Base Rate Advances and then to Eurodollar Advances in direct order of Eurodollar Advance Period maturities. Nothing in this Section 2.6(c) shall be deemed to allow the Borrower Parties to issue Equity Interests or incur Funded Debt except as otherwise not prohibited by this Agreement and the other Loan Documents. Notwithstanding anything contained in this Section 2.6(c) to the contrary, each Lender shall be permitted in its sole discretion to decline all or any portion of any mandatory prepayment required pursuant to the terms hereof, other than mandatory prepayments required under clause (v) of this Section 2.6(c).
(vii) The Borrower shall give prior written notice of any prepayment required under this Section 2.6(c) to the Administrative Agent as far in advance thereof as is reasonably practicable (and in any event at least three Business Days prior thereto), and, except with respect to prepayments required pursuant to clause (v) above, deliver to the Administrative Agent at least three Business Days prior to making of each such prepayment, a certificate signed by an Authorized Signatory of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount portions of the Term Loans to be prepaid. Notwithstanding anything to the contrary herein, failure to provide such notice hereunder shall not preclude the Borrower’s ability to make such prepayment hereunderLoan which are outstanding as Prime Rate Loans.
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